Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUQLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1695.C37 The law of money securities :ln three bo 3 1924 022 474 591 The original of tliis bool< is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022474591 THE LAW MONEY SECURITIES, Mn Uxn loofts. I. PEESOISTAL SECUEITIES. II. SECUEITIES ON PEOPEETY. III. MISCELLANEOUS. C. ^VANAGH, B.A., LL.B. (Lond.) OF THE MIDDLE TEMPLE, BAREISTER-AT-LAW. "Scribe decern a Nerio; non est satis: adde Oicutai " Nbdosi talmlas centum, w/ille adde catenas : " S^ugiel tamen hcec sceleratus vincula Proteus." Hob. Sat. II. 3. LONDON: STEVENS AND SONS, 119, CHANCERY LANE, 1879. LONDON : STEVENS AND EI0HAED80N, PMNTEKS, 5, &BEAT QUEEN STREET LINCOLN'S INN FIELDS, W.C. THE RIGHT HONOUBABM SIK FITZROY KELLY, LORD CHIEF BARON, ■WITH WHOSE ILLUSTEIOUS CAKEEE HAVE BEEN INTIMATELY ASS0CIAT3D THE CAUSES O^LEBBES OF THE GEBATEK PORTION OE THE NINETEENTH CENTDKI ON THE SUBJECTS HEREIN TREATED, ^h math BY KIND PERMISSION MOST RESPECTFULLY DEDICATED. INTRODUCTION. In the department of law that treats of monetary transactions no country in the world commands so high an interest as England. Not only in the individual dealings of her own business men one with another ; not only in her trade that has become essen- tially a trade on borrowed capital, but still more as the great international money centre, England occupies a unique position in regard to financial matters. Her Money Market and chief Stock Exchange in London hold incomparably the first place amongst similar organizations in the hierarchy of states,, and exercise a preponderating influence of corresponding magnitude; it is in and through them that the majority of foreign payments and loans on a large scale are made or floated; hence a cosmopo- litan importance attaching to everything connected therewith. In these facts, and in the singular absence of treatises on the subject, the following pages might alone find their justification, for although the primary end the author has had in view has been to compress into a single volume a clear and concise statement of the legal rules and principles which determine the effect of the instruments and modes whereby private loans and debts are secured, he has, in the pursuit of that end, and as ancillary thereto, discussed most points of any legal moment connected with loans and debts of a public or marketable character. VI INTEODUCTION. To the community generally, as largely composed of borrowers and lenders, of debtors and creditors, and more particularly to those whose avocations consist in the manipxilation of advances and loans, no apology need be offered for the appearance of the present work. Suffice it to say, that there exists no one complete book on Securities of a monetary nature to which reference can be made either by lawyers or by bankers, brokers, money lenders, com- panies, capitalists, or other classes in the commercial world ; it is hoped that such want may be in part met by the treatise in hand, to the title and plan of which some words of explanation may now be devoted. To most ears the term Money Security will perhaps sound strange ; lawyers talk of securities for money, laymen of securities simply, and neither, if the truth must be told, with any very clear or definite idea of the object they mean to express. It is clear that bills of exchange, promissory notes, bonds (a), mortgages (6), and judgments (c) are securities for money in the strictest technical language of the law. On the other hand, it has been held that a bequest of money and securities for money does not pass an I U (d) — a fact judicially characterised as a singularity (e) — nor bank stock and canal shares (/), nor does a bequest of " all bonds, promissory notes, and other securities for money " pass money due on banker's deposit receipts (g), nor does a bequest of " leaseholds and securities for money" include vendor's lien for purchase-money of such (a.) Langdale v. Whitfeld, i K. & J. per EomiUy, M.E.. ,:. TT ■ r... T, ,.• (/) Ogle V. Knipe, L. R 8 Eq. 434. M H* ■ ^"^'"^o". 2 f & J- 503. (g) Hopkins «. Abbott, L. E. 19 Bq. \1 &?, w r'' ? V'V*/- l^^- 222; Bilborough v. Hohnes, L. E. 5 M le MaI'o?rw"l^' \I--i- ^- ^Jt ^^- ^- 255 ; Parker v. Marohant, 1 Y. [c) Me masons Will, 34 Beav. 499, & C. C. C. 290, INTRODUCTION. vii leaseholds as testator had sold (h) ; but under a bequest of " all my monies " a balance due on a banker's deposit account, and secured by deposit notes bearing interest is comprehended (i), and it has been said that stock in the funds is considered a security for money, but shares in companies are not (k), and that the question whether stock passes under a bequest of securities for money depends upon the context of the will (l). Most of these distinctions are highly unsatisfactory; they are founded neither on common sense nor on legal principle. There is no reason in extending the term Security for Money to bonds and equitable mortgages and denying it to I U's, banker's deposit receipt notes, and vendor's lien ; but if the legal interpretation of securities for money errs on the side of narrowness, the popular use of the word Security errs still more on the score of vagueness. In ordinary parlance it usually denotes the public or investment securities quoted on the Stock Exchange ; it also denotes all that is or may be properly called a security for money, or for property of any kind whatever; and it further denotes the deeds and documents that establish title to property, and sometimes even the property itself (m). Now there appear to be two, and only two, original senses in which the term Security can be intelligibly employed ; it may signify any instru- ment, mode, or transaction which specifically ensures payment of a given sum or sums of money simply, or which ensures such payment as an equivalent or compensation for a given subject of property; hence, securities may be originally distinguished into securities for money, as bills of exchange, mortgages, life (h) Goold V. Teague, 5 Jur., N. S. 116. {I) Bescoby v. Pack, 1 S. & S. 500, (i) Manning v. Pnrcell, 2 Sm. & G. per Leach, V.C.; Eidge v. Newton, 2 284 ; 7 D. M. & G. 55. D. & W. 239. (i) Me Mason's Will, 34 Beav. 499, (m) Giffen's Stock Exchange Secu- rer Komilly, M.K. rities. VIU INTRODUCTION. policies, guarantees, &c., and securities for property, as fire and marine insurance policies, warranties, &c. Deeds and documents that merely- establish title to property, as purchase deeds, leases, court rolls, bills of lading, dock warrants, delivery orders, &c., are not properly styled securities, though they, as well as pro- perty of every description, may by deposit, pledge, or mortgage be all made to enter into the constitution of a security (n). Of so-called securities quoted on the Stock Exchange those which entitle the holder to participate as creditor in an unfunded loan and are in the form of individual instruments, as bonds, debentures, exchequer bills, &c., are genuine securities for money; funded Government stocks are securities for money in the sense that Parliament is pledged to provide a certain annual interest on each hundred pounds of stock ; stocks and shares in companies cannot be designated as securities except by a metaphorical expression (o). The scope of the present undertaking being limited to securi- ties of a monetary character, the title Money Securities has been adopted as the most expressive and the least open to ambiguity; it at once excludes securities for property and includes private securities for money, whether technically or rationally so styled, as well as public securities quoted on the Stock Exchange ; thus, it is trusted, professional accuracy has been reconciled with popular comprehensiveness. From a legal, economic, or commercial standpoint, no more important classification of securities can present itself than that ordinarily marked by the phrases Personal Securities and Securities on Property. A personal security merely creates or (n) Post, p. 223. further distinction between seonrities (o) See post, p. 496, where also a is pointed out. INTRODUCTION. ix facilitates a right of action or execution against a given indi- vidual or body ; it is founded on the credit, that is, the reliance ■which may be placed on the pecuniary fidelity of the party giving the same; a security on property binds some specific thing, out of which the debt or loan secured may be realised, it is founded on the sufficiency of the fund that may result from the realization of the thing bound. To emphasize the contrast now indicated, the phrases Securities on Credit and Funded Securities have been conjoined with the more familiar titles Personal Securities and Securities on Property, and the two classes of securities have been grouped in separate Books ; the first Book is accordingly designated and treats of Personal Securities or Securities on Credit ; the second, Funded Securi- ties or Securities on Property. It should be observed that the word Funded, when applied to Grovernment securities or stocks, bears a very different meaning to that here used (p) ; its ety- mology, however, fully justifies the signification attributed in the above title. With the view of ensuring brevity and preventing repetition, those matters which are common to both personal securities and securities on property, have been dealt with in the third Book. The arrangement throughout has been planned with a similar object ; hence, what may seem to have been omitted in one place wiU be found to have been introduced more appropriately in another, the index affording a key which, it is believed, will, if consulted, clear up many apparent shortcomings. To the student who seeks a clear statement of principles ; to the legal practitioner who requires a handbook incorporating all the recent relevant cases and statutes ; to the mercantile ip) Post, pp. 496, 497. X INTEODUCTION man who desires a guide through intricacies of everyday occur- rence; to the borrowing and lending public at large, this exhaustive treatise is submitted as a concise exposition of the existing state of the law in a province which has of late years undergone vast changes, and on subjects the importance of which cannot be overrated. C. C. 5, Essex Court, Temple, July, 1879. TABLE OF CONTENTS. INTRODUCTION ADDENDA ET COEEiaENDA TABLE OF CASES TABLE OF STATUTES PAGE V — X xvi xvii — xli ... xlii — xlviii BOOK I. PERSONAL SEOURITIES OR SECURITIES ON CREDIT. CHAPTER I. I U's ... Peomissoet Notes Bills op Exchange Cheques Bank Notes CHAPTER II. CHAPTER III. CHAPTER IV. CHAPTER V. 1,2 3—7 8—18 19—25 26—35 Xll CONTENTS. PAGE CHAPTER VI. Bank Post Bills 36, 37 CHAPTER VII. Banker's Deposit Receipt Notes 38—40 CHAPTER VIII. Letters of Credit and Circular Notes 41 — 47 CHAPTER. IX. Post Oi'fice Orders 48—59 CHAPTER X. Bonds and Post Obits . ... 60 — 64 CHAPTER XI. Exchequer Bills, Exchequer Bonds, and Treasury Bills ... 65—72 CHAPTER XII. Foeeiqn Government Securities 73 — 76 CHAPTER XIII. Life Policies 77 — 88 CHAPTER XIV. Jcdsment Securities 89 — 100 In 'General, 89—93 — Warrants of Attorney, 94 — 9T—CoynovU Actionem, 97, 98— Judge's Order, 98—100. CHAPTER XV. Guarantees 101—108 BOOK II. FUNDED SECUKITIES OR SECURITIES ON PROPERTY. CHAPTER XVI. Mortgages— General Principles 109—118 CONTENTS. CHAPTER XVII. MORTOAGES OP FREEHOLDS 119 141 In Greneral, 119 — 126 — ^Looke King's Act and Amending Acts, 126 — 129— What passes under, 129, 130— Nature of Equity of Redemption, 130 — Effect of Statutes of Limitation, 131— 141. CHAPTER XVIII. MORTOAGES OP LEASEHOLDS 142 146 CHAPTER XIX. Mortgages op Copyholds 147—149 CHAPTER XX. Mortgages op Ships 150— l.'i4 By direct Mortgage, 150 — 153 — Under Mortgage Certificate, 153, 154. CHAPTER XXL Mortgages of Stock and Shares in Companies 155 — 158 CHAPTER XXII. Bills op Sale ,. 159-222 In General, 159 — 163— Validity of as against Grantor's Creditors, 163 — 170- -Validity of as against Persons having a Right of Distress against Grantor, 170 — 179 — Validity of as against Grantor's Trustee in Baukruptcy, 179 — 197 — Bills of Sale Acts, 198-222. CHAPTER XXIII. Equitable Mortgages 223 — 240 CHAPTER XXIV. Pawns AT Common Law 241 — 244 CHAPTER XXV. Pawns Under THE Pawnbroker's Act 245 — 251 CHAPTER XXVL Pawns and Pledges Under the Factors Acts 252—262 General Rights of Factors, 252, 253 — Statutory Provisions in detail, 253— 258— General Effect of Factors Acts, 258—262. XIV CONTENTS. CHAPTER XXVII. Debentubes 263—294 Negotiable Instruments, 263 — 267 — Debentures in General, 267 — 270— Under Companies Act, 270— 276— Under Mortgage Debenture Acts, 276 — 281 —Under Companies Clauses Acts, 282— 291— Under Commissioners Clauses Act, 292—294. CHAPTER XXVIII. Lloyd's BoNDB 295—299 CHAPTER XXIX. , Assignments 300 — 326 In General, 300— 303— Equitable Assignments, 303— 315— Assign- ments under Judicature Act, 316 - 326. CHAPTER XXX. Liens 327—377 In General, 327— 329— Of Unpaid Vendor on Real Property, 329— 336— Of Unpaid Vendor on Personal Property, 336 — 347 — In Particular Trades and Professions, 348 — 363 — Maritime Liens, 364—375 — Miscellaneous Liens, 375 — 377. BOOK III. MISCELLANEOUS , CHAPTER XXX L COLLATEEAL Sboueimes 378—420 Of General Discharge and Satisfaction, 379 — 385 — Of Merger, 385— 390— Of Co-existent Rights of Action, 390— 393— Of Marshalling, 393— 397— Of the Rule in Ex parte Waring, 397— 402— Of Appropriation of Goods to meet Bills, 402 — 404— Of Policies Collateral to a Debt, 404— 407— Of Assign- ment and Delivery up of Securities, 407 — 411 — Of the Gift and Extinguishment of Securities, 411 — 418 — Of the Relative Value of Securities, 419 - 420. CONTENTS. XV CHAPTER XXXII. Intebest In General, 421, 422— At Common Law, 422— By Statute, 422, 423— By Practice of Court, 424. 421—424 CHAPTER XXXIII. Stamps Law of, 425— 432— Table of Stamp Duties, 433—460. .. 425—460 CHAPTER XXXIV. Actions AND Other Remedies ON Securities In General, 461 — 463 — Procedure on Specially Indorsed Writ, 463 — 467 — Procedure under the Bills of Exchange Act, 468 — 472 — Realization and Redemption of Mortgages of Real Property, 472 — 480 — Realization and Redemption of Mort- gages and Pawns of Personal Property, 481, 482 — Realization and Redemption of Debentures and Lloyd's Bonds, 482 — 485 — Mode of Enforcing Assignments, 485 — Mode of Enforcing Liens, 485 — 487— Procedure in the County Court, 488, 489. 461—489 CHAPTER XXXV. The Money Market AND THE Stock Exchange 490- Preliminaiy Observations, 490—493 — Money and Securities as Commodities, 494— 503— The Discount Market, 504—513— The Stock Exchange, 513—537. -537 APPENDIX. Appendix (A), The Ckossed Cheques Act, 1876 (B), Locke King's Act and Amending Acts (C), The Bills of Sale Act, 1878 (D), The Factors Acts ... 539—541 541—543 544—550 551—563 INDEX 565—664 ADDENDA ET COERIGENDA. Page 80, II. (h). — London Assvirance v. Mansel, since reported, L. R. 11 Ch. D. 363. ,, 83, n. (k).— JZead " MeUor's '' for " MeUar's." „ 105. — On second line from bottom read "A. guaranteed only £600,"/o»' " A. guaranteed only £500." „ 108, n. {c).^^Ex pwrte the Postmaster-General ; In re Bonham, reported L. E. 10 Ch. D. 595. „ 168, n. (d).— Wright v. Redgrave, reported L. R. 11 Ch. D. 24. „ 180, 11. (d). — Ex parte Astrup ; In re Lefevre, reported L. R. 11 Ch. D. 303. „ 241, n. (e). — Head " Meyerstein " /or "Myerstein." „ 344 n. (c). 1 „,^ , . ( Expa/rte Cooper ; In re McLaren, reported L. R. 11 Ch. D. 68. „ 397, 11. {h).—Ex pwrte Carr ; In re Hoffman, reported L. R 11 Ch. D. 62. ,, 411, n. (o). — Add " This section does not extend to the County Courts, Cole V. Wood, L. T. 14th June (1879), 120." „ 326, n. (e).—Iimd "post, p. 437 " for "post, p. 432." „ 535, n. (u). ) \ Read " Commission " for " Commissioners." „ 537, n. (e). 1 TABLE OF CASES. A. PAGE Abbott V. Stratton 162 Aberaman Iron Works Co. r. Wilkes ... , 3.35 Acatoa w. Bums ... ... ... 351 Acey V. Fernie ... ... ... 81 Aokroyd, Ex parte ... ... 400 Aoland ». Gaisford ... ... 424 Adamea iJ. Hallett ... ... 64 Adams 1). Angell ... ... 116 ^j;. Glaxtoa 244 Addison t). Cox 304,311 V. Gandasequi ... ... 492 Addison's Case ... ... ... 156 Adlam r. Noble 97 Adnam v. Earl of Sandwich ... 146 Agra Bank, .Er^artc; /rercBarber & Co. ... 45 In re Wor- cester ... 309 In re; Ex parte Ton- deur ... ... 44 Claim 227 Limited v. Barry 237, 239 ^ V. Leigh- ton 468, 469 Agra and Masterman's Bank, In re ; Ex parte Asiatic Corpora- tion ... ... ... 41, 44 Agricultural Insurance Co., In re ■ 400,423 Albert v. Grosvenor Investment Co. 164 . ■ — Assurance Co., In re ; Cook's Policy 80 Assurance Co., In re ; Ex parte Western Life Assurance Society . 334 Aldous V. Com well ... ... 418 Aldrich V. Cooper ... 393,395 Alexander, Ex parte ■ V. Birchfield V. Sizer PAGE 208,215 ... 20 6, 493 ... 375 Aline (The) Alison, In re ; Johnson v. Moun- sey 189,480 Allen, Ex parte ; In re Middleton 219 In re J Davies r. Chatwood 359 r. Bennett 183 1. Carter 468 T. Graves 526,527 V. Kemble ... ... 17 V. Knight 231 AUetson V. Chichester 86 Allsop J). Day Alston , Ex parte Alton V. Hamin ... Amerique (The) Ames V. Hill Amicable Society v. BoUand Amis -u. Witt Aneona v. Rogers Andrews, Ex parte — Trusts, In re ... Aneroid (The) Anglo-Danubian Steam Naviga- tion and Colliery Co., In re 274 Anglo-Italian Bank t). Davies ... 92 Anna (The) 365 Antrobus v. Smith ... ... 413 Arbouin V. Hanberg 183 Armani «. Castrique 13 Armstrong i). Lynn 233 Arnold, Exparte ... ... 194 u. Cheque Bank 21, 25 203 347 167 368 441 81 415 189, 214, 215 ... 214 ... 190 ... 306 V. City Bank 5, 21, 22, 25 Arundel (Lady) v. Phipps 166, 167 Aehbury Railway Carriage and Iron Co. ■!;. Riohe ... 267,269 Ashton V. Blaekshaw .. 187, 202 1} xvm TABLE OF CASES. PAGE Ashton ». Corrigan 116 Asiatic Corporation, Ex parte 41, 44 Assignees of Taylor v. Killileagli Flax Spinning Co ]S3 Aston I'. Heaven 349 r. Pye 416 Astnip, A'a; j5aWe ; In re Lefevre 180 Atkinson 11. Maling ... ... 167 Attenborough v. tt. Katherine's Docks Co 242,328 Atterbury t). Wallis .,. ... 236 Attorney and Solicitors' Act, In re 305 Attorney-General r. Bowens ... 74 Attwater, Ex parte; In re Tur- ner 181,197 A ttwood «. GrriflSn ... ... 55 Auckland Building Society, Ex parte; /n « Raine ... ... 203 Averall r. Wade ... 114,395 Ajers I. South Australasian Banking Co 241 Aylesbury (Earl of) v. Morris ... 64 Ayliff ?'. Serimshire 380 Ayrey r. Fearnsides ... ... 3 B. Bach V. Meats Baokhouso v. Charlton ... Baddeley s). Massey Badger v. Shaw Bagnall v. Carlton ... . . ^ Bagnalstown and Wexford Rail- way Co., In re Baile v. Baile Bailey, Ex parte ; In re Jedks . . . V. Finch Baillie, In re Bainbridge, In Fletcher Baker, Ex pa/rte, V. Gray V. Harris Balburnie, In 178 228 133 219 93 299 362 195 357 180 re; Ex parte .. 201, 214, 21.5, 308 In re Bellman 11 115 • 113 re ; Ex parte 396,397 360 492 124 Jameson Balch V. Symes . . . Balder v. Dobell Baldwin v. Lewis Banco de Lima v. Anglo-Peruvian Bank 234,507 Bamfield, In, re; Ex parte New- port 203,205 Bank of England iJ. Tomkins ... 72 PAGff" Bank of Hindustan, China and Japan, In re ... 423 Hindustan, China and Japan, Ex parte Smith 361 Ireland r. Dunne ... 12 V. Evan's Chari- ties 21, 500 Montreal i: Munster Bank 101 . Scotland v. Watson 38, 39 . — South Australia v. Abra- hams 275 Van Dieman's Land r. Bank of Victoria ... 10 Banking Co. of London v. Phoenix Bessemer and Steel Co. ... 340 Banner, Ex parte; In re Key- worth ... 396 In re Tappen- beok . • r. Johnstone . Barber & Co.. In re Barbidge, Ex parte ; 401 44,385 ... 45 In re Pooley ... ... ... 194,308 Barclay, Ex pai te ; In re Joyce 208, 209 Barker I'. Barker ... ... 376 r. St. Quentin ... 360, 380 Bamed's Banking Co., In re 45, 400 Barnwell v. Ironmonger ... 127 Barrand, /ft re ... ... ... 219 Barron i;. Martin ... .. 148 Barrow i>. Bell 189 Barrow's Case ... ... ... 423 SuTiy, Ex parte ; /h re Fox ... 186 r, Harding vi I'. Morony 101 Barton 1). Gainer ... ... 315 V. Gray ... 226 V. Turner ... ... 96 Batchellor ». Lawrence ... 408 Batemant'. Mid-WalesEailwayCo. 291 Bateson II. Gosling .. ... 103 Bath's Case ... 503. Batley v. Faulkner 61 Batson v. Newman ... ... 536 Battersby 's Trusts, In re ... 325 Baxendale i/. Bennet 14, 21, 265 Baxter ». Pritchard ... ... 183 Bayley «!. Wilkins 528 Bayliflte ?;. Butterworth ... ib. Bayspoole u. Collins 69 Beak v. Beak 415 Beattie r. Lord Ebury ... ... 266 Beck 11. Kebow ... ... ... 176 Beckett f. Buckley 92 Beckham v. Drake 63 TABLK OF GASES. XIX PAGE Beckley I). Newlaud 162 Bedell, /n»-e 181,197 Bedford tJ. Backhouse 2J9 Beeston D. Beeston .. ... 536 Begbie v. Fenwiuk 208 Belding «. Keed 162 Belamy ti. French S5S Belfast Banking Co. r.Doberty 263, 265 Bellamy v. Cockle V. Saul 398 103 152 i&i 11 390 125 375 Bell V. Banks — V. Blyth Bellew (Lord) v. Markcy Bellman, In re Belshaw v. Bush ... Belvedere v. Hochfur!; Bsnares (The) Bonham ;-. United Guarantee and Life Assvirance Co. Benjamin r. Bank of England ... Benson r. Chapman Bergstrom w. Mills Berndston v. Strang Berridge v. PitzGerald Berrie v. Howitt ... Berry v. Gibbons ... Berthier, Ex parte Bescoby v. Pack ... ... ... vii Bestivick, In re; Ex parte Best- wick 397 Betteris Trust Estates, In re ... 126 Betut Z-. Hartley ,. . ... ... 350 Bevor D. Luck ... ... 115,477 Beynon z'. Cook ... ... ... 64 r. Godden 151 Bickerdike ?i. Bollman ... ... .11 Bidermau r. Stone ... ... 531 Bilborough v. Holmes ... . . . vi, 39 Billing V. Devaux Binns v. Eisher ... V. Nichols ... ... 80 ... 27 ... 351 ... 372 344, 404 ... 11 ... 362 ... 2i2 ... 105 39 20 411 ... 132 ... 231 ... 363 ... 197 345, 346 ... 101 Birch V. Ellames ... Birchall v. Pugin ... Bird V. Bass 1>. Brown Birkmyr v. Darnell Birmingham Banking Co., Ex parte 269 'Bishop, Ex parte ; /« re Tonnies 191 Bishop of Winchester v. Mid- Hants Railway Co. ... ... 335 Bishop's Waltham Railway Co., In re 91 Bissell Brothers, 7m re ... ... 181 Bittlestone ». Cooke ... ... 183 Black t'. Homersham ... ... 533 PAGE Blackburn, Ex parte; In re Cheeseborough... ... ... 193 Blackman v. Yates ... ... 298 Blake Haddon (The) 372 f. Appleyard ... ... 489 Blakeley Oiduance Co., In re; Ex parte New Zealand Banking Corporation ... 273 Blanchard, In re ; Ex parte Hat- tersley 187 Blanrly 11, Allen 258 Blaney II. Hendricks 422 Blenlchorn, /ra re . . . ... ... 214 lilessard f. Hurst... 11 Block II. Bell ... -_ 36 Bloomer v. Union Coal and Iron Co 275 Blount ti. Harris .. . 217 Blnxam .Cx jparfe ... 597 V. Saunders ... ... 346 Blunden V. Besart ... 3-19,360 Blyth 1'. Carpenter 158 Bpatwrijjht u. Boatwright ... 382 Bobbet V. Piukett 21, 24 Bold Buccleuoh (The) . ... 364 Bolton V. Lancashire, &e., r>,ail- wayCo , 3-15,407 V. The School Board for London ... ... 120 JioW&nA, Ex parte ... ... 184 In re 191 /» re Cherry ... ... 193 Bonar ti. Mitchell 18 Bonham, /m re ... ... ... 108 Bonomi n. Backhouse ... ... 382 Booth r. Kich 478 Borland v. Curry ... ... 464 Borough of Hacknuy Newspaper (Jo., In re 276 Borrows t). Ellison 133 Boughton ». Bough ton ... ... 169 Bourdick II. Garrick ... ... 134 Bourne r. Gatcliff 350 Bowen v. Brecon Railway Co. , Ex jjarJc .Howell ... ... 528,5-31 Bowering v. Shepherd . . . 520, 523 Bowker,/rere; Ex parte Houghton 185 Bowles V. Rogers... ... ... 830 Boys, In re 390 Brace v. Duchess of Marlborough 113 — . — «. Harrington .:. ... 408 Braokenbury, In the Goods of ... 108 Bradlaugh t-. De Rin 428 Bradley «;. Copley 110 v. Riches ... 2:35,239 Brandao v. Barnett 72, 223, 355, 356 b2 XX TABLE OF CASES. PAQ15 Brandon ti. Brandon ... ... 10.5 Branford t!. Saunders ... ... 84 Brantom i\ Griffits ... 207,209 Breeoh-Loading Armoury Co., In re; Wragge's Case ... ... 310 Brentwood Brick and Coal Cj. In re Breslauer v. Brown Breslin v. Hodgena Brett, Mx parte ... In re Howe Brice V. Bannister Bridge v. Beadon... V. Bridge . . . Brierly v. Kendall Briggs V. Boss 1'. Jones ... 4, 322, 326, 333 103, 181 ... 137 ... 308 ... 397 437 307 412 164 217 237 187 164 213 388 Bright, Ex parte ; In, re Smith ... Brightley ». Norton Brignall v. Cohen Brinsmead v. Harrison ... Bristol V. N. Somerset Kailway Co., In re ...- 290 British Empire Shipping Co. v. Soames 348 Linen Co. v. Caledonian Insurance Co.... 41, 42 li. Drummond 16 - Mutual Investment Co. Smart ... Broadbent, In re ... Broadwood «. Granara ... Brodrick v. Scale Bromley v, Brunton Brooke, Ex parte ; In re Hassell V. Hames 227 187, 203 ... 352 217 415 196 60 Brooker, Ex parte; nedge ... Brooks V. Elkins ... Broome v, Monok Broomhead, In re Brown, In re Ex parte In re Fast- 423 1,448 331 363 193 In re Eeed 186, 187, 208, 209 s). Barton 97 r. Black 532 V. Bateman ... ... 203 7-. Tanner... ... ... 151 Browne I'. Lookhart ... ... 122 w. Savage ... ... 310 Browning V. Baldwin ... ... 107 Brown's Trusts, /» re ... 309,310 Brownson v. Lawrence ... ... 128 Bruce v. Garden ... ... ... 405 Brunton's Claim ... ... ... 266 Brutton v. Burton 95 PAOE Bryant u. Carson ... ... ... 157 D.Herbert ... ... 4S9 Bubb V. Yel verton ... ... 635 Buccleugh (Duchess of) v. Hoars 409 Buck V. Hurst and Bailey ... 2 — ^ I'. Eobson 326,4.37 Buckland t'. ButterfielJ . . . ... 176 Buckle V. Mitchell 232 Buckley p. Jackson 6 Bucknal r. Koistou ... ... 161 Bull t>. O'Sullivan 428 BuUen, /n re 196 Bnller r. Plunkett 311 BuUeyi). BuUey 362 Burbidge v. Manners 6 Burdick D. Garrick ... ... 424 Burgess ti. Eve ... 107 Burgoine «. Spurlihg ... 120,147 Bum ti. Carvalho 189,311 Bums V. Irving 93 Burrell, Ex partg; In re Parnell 335 Burrows i'. Jemimo ... ... 16 Burslem ». Attenborough ... 247 Bursot w. Savage 235 Burton r. Pinkerton 373 Butcher, Ex parte; In re Mel- drum 193 u. Stead 193 V. Stewart ... ... 101 Button D. Thompson 373 Byerly ». Prevost ... 203,205 Bym ». Godfrey 417 0. Caddick r. Cooke 475 Cadett J). Earle 500 Cadogan v. Kennet ... 166, 167 Caine D. Coulton ... ... ... 37 Calabar (The) 372 Calcraft v. Roebuck ... ... 424 Gaideoott, Ex parte ... ... 190 Caldwell, Ex parte; In re Currie 186,309 Calisher D. Forbes ... 305,311 Callow V. Laurence ... ... 5 Calne Kailway Co., /)i re ... 91 Calvert n. Tomlin 98 Calye's Case ... ... 353 Camidge D. Allenby ... ".] 32 Campbell v. Compagnie G&^rale de Bellgrade ". Holy land and another r. ImThurn and others 483 117 470 TABLE OV CASKS. XXI PAGJB Capper, Ex parte ... 62 «. Spottiswoode 334 Capper's Case 525 Carew I'. Duckworth 20 Carey «>. Doyne 422 Cargill t'. Bower 266 Cargo, JE'a; Argos 350 Schiller 368 Sultan 367 ■ Woosung 369 Carlisle, /ft re 213 Banking Co., Ex parte; fle Walton ... '... 193 V. Southampton Railway Co 85 Carr, Ex parte ; In re Hoffman 397 V. London and North- Western Railway Co 339 Carrick, Ex parte ... 402 Carter v. Wake 111, 157, 228, 243, 481 Casbome v. Scarfe Casella v. Darton Castellan v. Hobson Castle, Ex parte ... Catheart (The) V. Lewis Catling V. King ... Catlow V. Catlo w ... Caton V. Caton ... Cator V. Earl of Pembroke V. Reeves ... Cavander v. Bulteel Cazenove v. British Equitable ALSsurance Co. ... Cefn, Cilcen Mining Co., In re ... Chalmers, Ex parte In re Edwards 110, 130 468 532 185 153 408 382 363 103 330 479 233 80 291 346 339 Chambers 1-. Davidson ... 228,328 V. Manchester and Mil- ford Railway Co. ... 296,298 Chandler I'. Grieves 372 Chapman v. Shepperd 528 Chappie V. Mahon ... Ill, 42^ Charles J!. Blackwell 22 Charlton, /^a; ^artc ; iJc Charlton 102 Chartered Bank of India, &o. v. Dickson V. Henderson . Chase v. Westmore Chasemore v. Turner Chauntler's Claim Cheak v. Harley ... Cheeseborough, In re Cherry, In re Chester, Ex parte; In gate ..4,5,6 ... 347 .. 350 ... 384 229 14 193 193 re Dun- 184,193 PAGE Chesterfield «. Janssen ... 64,422 Chetah(The) 367,338 Chichester w. Marquis of Donegal 112 Chieftain (The) 365 Child V. Lord Abingdon 424 Childers u. Boulinois ... ... 448 Chippendale II. Thurston ... 158 Chissum i\ Dewes 229 Cholmondeley r. Clinton ... 109 Chorley, Ex parte 299 Christie, £'a; poWe 388 Citizens Bank of Louisiana r. Bank of New Orleans ...306, 385, 481 City Bank, Ex parte V. Luckie 271 401 101 371 372 City Discount Bank v. M'Lean . . of Antwerp (The) ... of Cambridge (The) Terminus Hotel Co., South Eastern Railway's Claim ... 157 Civil Service Building Society v. Mahony "207,209 Clark, In re ; Ex parte Newland 360 1;. Alexander ... ... 421 Clarke D. Lord Abingdon ... 62 V. Henty ... • V. Perceval V. Roche ... V. Royle ... 381 3 427, 428 333, 335 ... 389 Clarkes, In re Clayton v. Gosling Cleland, Ex paa-te ; In re Davies 361 Climie«. Wood ; 176,208 Coal Consumers' Association, In re 45 Cochxaae, Ex parte ; 7m « Cross 197 V. O'Brien ... ... 40 Cochrane's Estate, /» «... ... 408 Cockayne «. Harrison ... ... 361 Coggs V. Bernard ...40, 243; 349 Cohen, Ex parte ; In re Sparke 220, 221 i;. Hale 20,390 CoVoome, Ex parte ... ... 271 Cole, /n)-e 213 . i>. Bank of England ... 500 . V. Kernot 397 . I). North-Western Bank ... 252, 255, 260, 262 Colehan v. Cooke * ... ... 3 Coleman f . Say er 4 Coles z!. Bristowe ... 155,526 v. Pack 107 Collenridge f. Farqnharfcon ... 312 Collie, In re; Ex parte Manchester and Coimty Bank ... _375, 396 Collins, Ex parte ; In re Lees 202 — . V, Hlantern ,. ... 61 TABLE OF CASES. Collins V. Collins . . . r. Lamport V. Martin PAGE ... 332 ... 110 ... 508 ... 384 168, 190 ... 177 . ... 224 Collinson v. Margesson . Columbine v. Penhall Colyer v. Speer ... Combe, lix parte ... Coming, £x parte; In re Coming 202 Compagnie G&ferale de Eellgarde, In re; Campbell's Case ... 274 Conflans Quarry Co. v. Parker ... 4 3, 46 Congreve u Evetts 161 Oonibeer, /w re ... ... ... 191 Constitution (The) 487 Contract CorporatioDi In re; Claim of Ebb Vale Co. Cock, In re Cook V. Enmarch r. Fowler I). Guerra ... ». Lister Cooke, Ex parte ; In re Strachan V. Eield Cooper, Ex parte ; In re Baillie Ex parte; In re Baum 136, In re M'Laren Creswell ■ V. Earl of Waldegrave Coole V. Braham Ooort V. Sagar Coote V. Jeeks V. Lowndes Copeland, Ex parte V. Davies Corbett v. Kowe . . . CorbyH v. Bramston Cornish v. Clark ... V. Stubbs . . . ... 268 185,186 ... 473 94, 423 ... 125 ... 312 630 82 179 203 351 423 18 200 160 219 128 402 225 218 133 168 142 93 Cork (Earl of) v. Eussell ■p.Youghal Railway Co., Zrere 296, 299 Corsallis i). Patman ... .^. 111 Cotham «. West 124 Coupland's Claim 45 Courtenay v. Wright . . . 405, 406 Couston, 7m j-e 187,189 Coventry J!. Gladstone 347 Oowell v. Simpson ... 310,349,360 Cox, Exparte 186,187,191 1). Hickman 85 f. Leigh 178 ■ % Watson 474 Coxhead v. Mullis 64 Cracknall v. Janson ...114, 332, 477 Cragoe i;. Jones 102 Craig r. Taylor 93 PAGE Craven and Marshall, /ii « ... 192 Crawcour, Ex parte; In re Kobertson 187,200 Crawford, /» re 192 Credland f. Potter ... - ... 239 Cremetti r. Crom ... ... 100 Creswell v. Byron 360 Crispin, Ex parte; In re Crispin 180 Croft v. Graham 421 Crosbie, Ex parte; In re Bedell 181 Cross i>. Barnes ... ... ... 209 ti. Cross .. ... ... 417 Crossley v. City of Glasgow Life Assurance Co. ... 87 r. Elworthy 191 Crouch V. Credit Foncier of Eng- land ... ... 75, 264, 265, 272 Crowe's Mortgage, /nre ... 148 Crowfoot V. London Dock Co. ... 243 Crowle i;. KusseU 473 Croydon Commercial Gas Co. v. Dickinson ... ... ... 102 Cruse V. Paine . . 525 Crutchley v. Mann ... ... 55 CuUey, Ex parte ; In re Adams 179 CuUick i;. Swindell 229 Culling i;. TuffnaU ,.. 171,175 Cumber i;. Wane ... ... ... 381 Cuming, /» re 148 ti. Browne 347 Cundy v. Lindsay 252 Cunningham «>. i^oot ... 134,138 Curling r. Walters .-^. ... 231 Currie, /rare 187,309 Curtis i". Auber 161 . V. Eickards 1 Curzon V. Edmonds 134 Cuthbert t). Dobbin 94 Cuthbertson, 7n ?'e 186 D. Dagenham (Thomas) Dock Co., /rare 117 Daglish, Ex parte; In re Wilde 208, 209 Dalby v. India and London Life . 77, 83, 84 ... 189 ... 117 Assurance Co. Dale, Ex parte D'Alterao, Ex parte Daniel v. Cross . . . V. Freeman V. Eussel . . . V. Skipworth Danns v. Heath ,,. Dansey v. Richardson Darlow v. Cooper 301 113 478 160 353 392 TABLE OF CASES. XXIU PAGE 388 231 169 478 195 Darlow V. Mitchell Darnell f. Hunter Uarvill i>. Terry Dashwood v. Bithazey ... Da vies, /n re ... V. London and Provincial Marine Insurance Co. . 102, 103 Davis r. Bank of England ... 500 r. Haycock ... ... 523 ■ r. May 124 ■!>. Spence 467 Davison i). Overend ... ... 94 Daw r. Terrell 225 "DsiWeB, £x parte ; /jij'e Husband lfl6 Dawkins v. Lord Penryhn 1 39, 382 Dawson, £'xjpn)'te; /ra re Dawson 190 • V. Tate & Co., In, re ... — V. Bank of Whitehaven 207 112 ... 122 ... 476 ... 422 ... 175 ... 172 11.3, 307 Day V. Day ■ V. Gudgeon ... Day's Estate, 7n re Dean v. Allally ... Dearden v. Evans Dearie v. Hall De Bouchout i'. Goldsmid ... 158 De Gendre w. Kent ... ... 533 De Hoghton r. Money ... ... 305 De NichoUs ». Saunders .. . ... 125 Deffel n. White 218 Defries, Ex parte ; Re Myers ... 1 83 Delasaux V. Barling ... ... 467 Demandray r. Metcalf 114,244 Dennis i;. Seymour ... ... 465 Dennison, .Ek pctrfe ... ... 158 Denton i>. Peters ... ... ... 6 Derby Municipal Estates, In re 294 Dering 'J. Earl of Winchelsea ... 105 Derring r. Ware ... ... ... 169 Deux t.-. Jeffries 380 Devine i;. HoUoway ... ... 133 Dewey t'. Bayntun ... ... 166 Di Sora i>. Phimpps 422 Dickens t'. Burrell ... ... 305 Dickenson f. Tea=dale ... ... 134 Dicker J). Angerstein ... 110,480 Dickson v. Swansea Vale Ely. Co. 265 TA^y, Ex parte 126 Diggle t!. Higgs 536 Dingwall ■!;. Dun ster ... ... 9 Directors of Central Railway Co. of Venezuela t!. Kiseh .. . ... 266 Dixon, .Ec^arie; 7)1 re Henley 252 I-. Bovill 264 V. Gayf ere V. Muckleston Dobsou V. Land 323, 333 225, 234 ... lie PAGE Dodds r. Shepherd 323 Doe V. Laming ... ... ... 353 V. Manning ... ... ... 232 r. Stewart 96 d. Baddley v. Massey ... 133 Corbyn v. Brounston . . . ih. Curzon r. Edwards ... 134 Grimsby v. Ball 167 Palmer?). Eyre 132 Kobyv.Mai.5ey 122 ■ Eoylance v. T/ightfoot . , . ib. Shewen J). Wroot ... 147 Doherty r. Allman ... ... 110 Dolphin 1). Aylward ... .:. 395 t. Cooper 392 r. Layton ... ... 93 Don V. Lippman ... ... 15,17 Donald t". Suckling ... ... 243 Donovan v. Brown ... ... 467 Dorchester r. Webb 380 J)orm2ia, Ex parte ; In re Lake 186, 187 Douglass V. Culverwell ... V. Russell Drake ti. Mitchell Drinkwater v. Goodwin . . DriscoU's Estate, In re . . Drummond v. Duke of S'. Dry den v. Frost ... Drysdale v. Piggott Du Boison ■;■. Maxwell Dudson's Contract, In re DuflReld V. Elwes Duke of Bedford (The) ., Duncan v. Hill ... Duncombe v. Brighton Club Co. Diingate, Ex parte . Albans 110, 124 161 383 355 224 122 330 406 359 130 379, 415 ... 366 526, 629 423 184 Dunn !'. City of London Brewery Co. 112 Dunne r. Boyd . ,. . . ... 415 Durham Permanent Land, &c., Co ,/« re ; Wilson's Case ... 227 Duthie J-. Halton 350 Dutton r. Marsh _ Duvall r. Terry ... ... ... ' 62 Dyer v. Green ... ... ... 160 . V, Pearson ...• ... ... 252 Dyniond f. Croft ... ... ... 474 D'Yncourt r. Gregory ... ... 176 East of England Banking Co., In re ... London Waterworks Co. v. Bailey and West Junction Railway Co., In re 6 268 XXIV TABLE OF CASES. Ebb Vale Do., Claim of ; Contract Corporation, In re Ebbsworth v. Alliance Marine Insurance Co. ... Ecclesiastical Commiasioners of England v. North Eastern Rail- way Co Eddy, Ex parte; In re Outhbertson Eden v. Smyth Edmunds v. Waugh Edward Oliver (The) Edwards v. Edwards V. Harben V. Jones V. Vere . . . 268 404 Elborough v. Ayrea 'EV&oit, Ex parte . V. Freeman V. Bichardson 'EiWs, Ex parte ; /» re Ellis D. Ellis V. Emmanuel Ellison V. Ellison Elmer v. Creasy ... Elsam V. Denny ... Elvey r. Norwood Elwes V, Mawe Emanuel v. Bridger Emmerson's Case Emmot V. Marchant Enderley, Ex pa/rte Energie (The) England (The) English and Irish Church and University Insurance Society, He 85 EnnisandW. ClareEly. Co., /rere 503 Enthoven jj. Hoyle ... ... 427 Eslick Co., In re ; Ex parte Alex- ander ... 208,215,229 Ex parte Phillipan 207, 229 Espin V. Pemberton 236 Buropa (The) 365 EurSpean Bank, In re; Agra Bank Claim 227 Ex pwrte Oriental Bank 235 Central Railway Co., In re ... ... ... 91 • Central Railway Co., Ex parte Oriental Ei nancial Corporation 382 186 417 ... 137 ... 375 202, 220 166, 167 412, 413, 414 ... 39 ... 305 ... 192 ... 218 ... 305 ... 183 ... 500 ... 106 ... 412 ... 123 ... 10 ... 137 172, 173 214, 396 ... 528 .. 218 ... 187 ... 350 ... 368 312, 387, 423 79 197 381 — and another t'. Smith ... 68 — ■ivWood ... 532 Evans v. Bignold . V. Hallam — V. Powia . Everett v. Everett Eyre 1). Hughes V. Waller ... Eyton V. Denbigh, Ruthin and Corwen Railway Co F. PAGE 417 117 471 291 Fairbrother, /« re ... 186,187 Fairclough v. Marshall 122 FairUe ii. Fenton 492,493 FaithfuU «. Ewen ... 115,363 In re .... ... ... 360 Farmeloe v. Bain 340 Farquhar v. Morris ... ... 422 Farquharson «. Cave ... ... 416 ■w.Floyer 395 Farran v. Beresford ... 90, 132 Farrell 1-. Gleeson 90 Farrow, In re ... ... ... 2 Fastnedge, /n j-e . . . 188 Fawoett D. Lowther ... ... 147 Fawcus, In re; Ex parte Buck 187, 356 Fell I). Brown 112 Fells, 7n re ;.£■« ^arte Andrews 214 Feltham 1). Clark 311 Fenham (The) 371 Fergusson 1). Fyffe ... 15,422 Feroma(The) 152,373 Ferrers v. Stafford and Tjttoxeter Railway Co 336 Ferrhaugh r. Farrell ... ... 469 Fesenmayer v. Adcock ... ... 2 Fiddey, Jnre 362,363 Field©. Megaw ... ' 306 Fielden I). Slater 233 Finnev ?). Grice ... 172 ■ ^?). Hinde 93 Fisher, Ex parte 184 ■«>. Calvert 326,428,437 ■ V. Leslie ... 448 I'. Smith 356,366 Fitch V. Jones ... ... ... 4 Fleet V. Murton 492 Fleming v. Manchester Railway Co 489 Fletcher, iij; jjarte ; in. re Hart... 476 In re Henley 214, 215, 308 V. Ash burner ... ... 331 ■«. Manning 189 Flceur de Paris (The) 373 Florence Land and Public Works Co., In re; Ex parte Moor 267, 270, 273, 483 Flory j;. Denny ... ... ... 169 TABLE OF CASES. XXV PAGE Flower V. Lloyd ... ... ... 90 • ■!). Martin 411,418 Flying Fish (The) 371 Foley V. Addenbroke ... ... 175 Forbes II. Marshall 36 Ford r. Beech 380 r. Earl of Chesterfield ... 476 Forhall n. Forhall 223 Forrest v. Elwes ... ... ... 62 Forster f. Colby 351 Forwood's Claim ... ... ... 45 ¥oss,Exparte 189 Foster, In re and Lister V. Cockerell T. Colby ... V. Coolcson ZJ. Fox r. Mackinnon 86, 309 168 115, 232, 307 351 178 313 1". Parker ... 9,478 ■ V. Pearson . 508, 509, 510 . n. TJsherwood ... ... 489 Forsyth f. Bristo we 131 Fottrell J). Kavanagh ... ... 45 Fountain v, Carmarthen Kail- way Co. 299 Foxr. Bnlkley 377 Foxley, Ex parte; In re Nurse 184 Foxon V. Grasooigne ... ... 363 Franklin «. Neate ... ... 244 Fraser r. Thompson ... 168,190 Frayer v. Witt 345 Frederick (The) 371,376 Freedom fl'he) 107 Freeman r. Cook ... ... 385 II. Pope 168 Fjemer. Brade ... ... ... 405 French ti. Gerber ... ... 352 r. Maoale ... ... 62 Frend II. Buckley 143 Frere v. Moore 330 Freshfield's Trust, In re 232, 307 Freshney u. Carrick ... ... 185 Frise V. Wray 346 Frith V. Forbes . . . Fruhling v. Schroeder Fuentes v. Montis Fuller V. Smith . . . Fulton i: Creag . . . 422 261 32 133 Furber, Exparte; In re PeUew 220, 221 G. Gabriel v. Dresser Gadd V. Houghton 381 493 PAGE Gaddick 1'. Cooke 475 Gage V. Bulkeley 244 .Gale V.Walsh 13 i). Williamson ... 167,168 Gaxaes, Ex parte 361 Gardner v. London, Chatham and Dover Railway Co. 291 ■ ". Parker ... ... 415 v. Shaw 216 Garland v. Jacomb ... ... 9 Garnett v. Bradley 57 V. M'Kewan 356 Gass, In re ... ... ... 167 Gattyi). Fry 428 Gay T. Lauder ... ... ... 5 Gearson, Ex parte; In re Mor- timer 180 Geill V. Jeremy ... ... ... - 6 General Estates Co., Re ; Ex parte City Bank 271 ■— Furnishing and Up- holstery Co. -1). Venn 200 Provident Assurance Co., In re; Ex parte Na- tional Bank 225, 228, 276 Share Trust Co. v. Chap- man 359 South American Co., In re ... 15, 276, 483 Steam Navigation Co. v. the London and Edin- burgh Shipping Co. 364 Georges v. Georges ... ... 360 Gerard r. Lewis ... 315 Gibbons I). Baddall 334 Gibbs «. Cruiokshank 125 V. Freemont ... ... 18 and West's Case ... ... 275 Giblin 1). McMuUen 357 Gibson, In re; Ex par^e BoUand 184 ti. Bray 189 V. Minet ... ... 5 V. Overbury 314 Gidstock 21. Lister 169 Gilbey, Ex parte; In re Bedell 106, 197 Gill V, Continental Gas Co. ... 93 I'. Downing ... .,, 406 GiUy V. Burley 85 Girdlestone v. Brighton Aquarium Co 90 Gladstone D. Padwick ... ... 169 Glad well i). Turner ... ... 11 Glasgow Packet (The) 364 Glegg «. Gilbey 102 Globe, &c., Co., /to « 276 Glyn V, Baker ... ... ... 272 XXVI TABLE OF CASES. PAGE Gobiu Chunder Sein (Bengal) r. Kyan 259 Godfrey 1). Watson ... ... 124 Godsall !>. Boldero 84 Golden, Jn re 193 Gomersall, In re 507 Good, Ex parte; In re Armitage 380 Goode J', job ... 134 Goodwin r. Robarts ..-. 74, 301 Goold V . Teague ... ... ... vii Goram i>. Sweeting 80 Gordillo «. Weguelin ... 422,483 Gordon v. Bruce ... ... 382 V. Calvert Gordon v. Strange Gorgier v. Mieville Gobs v. Nelson Gottlieb V. Cranch Gongh ?■. Davies ... . — V. Everard Gould V. Davies ... Goupy V. Harden Governors of Magdalen Hospital V. Kuotts Graham V. Furber ^■. Johnson V. Mbspon i'. Walker V. Wilcocltson ... 103 59 74 3 406 39 213 361 6 146 167 311 103 124 £03 352 103 55 Gray v. Garr V. Megrath r. Milner Great Northern Railway v. Swaf- field 350 Paci6o(The) 366 Green, Exparte ... 184 f. AttenboroBgh ... 216 . r. Carhill ... ... 5 . «). Gray ... ... ... 441 ■V.Ingham 315 . ^D. Steer, ... 197 . ^— r. Wynn 103 Greenfell v. Commissioners of In- land Revenue ... 454 . V. Girdlestone 132 Greener, Ex pdrte; In re Vane 184 Grey r. Smith 39 Grice «. Richardson ... ... 337 Griffin v. Weatherley 427 Grimsby r. Ball .. • 167 Grimshaw Bridge Paper Co. r. M'Dowell 467 Grindell t>. Bendon 218 Grissell, .Ecc ^arSe 270 GriseeU v. Bristowe 155, 613, 520, 522, 523, 526, 527, 630, 531 PAGE Grizewood v. Blane 536 Grubb, /nre 196 Grugeon v. Gerrard ... . . 228 Grymes r. Boweren ... ... 176 Guardians of St. Leonard's, Shore- ditch, V. FrantUn 58 Guest V. Cowbridge Railway Co. 92 Gunn V. Bolckow, Vaughan &. Co 259, 262, 338, 339 Gumey y. Behrend ... ... 302 V. Womersley 7 Gwynne, /rare 196 n. Hadgett r. Commissioners of In- la-.d Revenue 431,442 Halifax Union r. Wheelwright, 22 B.a.11, Ex parte 221 ZnreWhitting ... 305,326 V. Hall 232 V. Levy 387 V. Pritchett 93 V. Smith 233 V. Wormsley ... ... 126 HaUey(The) 372 Halliday, Ex pane j In re Liebert 192 J). Holgate ... ... 241 Halstead t). Slceltpn ... ... 11 Halton V. Young 98 Hamburg and Brazilian Railway Co., In re 321 Hamilton r. Lloyd ... 416 Hammond v. Messenger ... 302 ti. Russell 168 Hampden v. Walsh 536 Hampton «. Hodges 122 Handley r. Roberts 96 Hankow . Rothwell ... 234 Harmer v. Bell ... ... . . ; 375 Harper r. Williams 423 Harris, Ex parte; In re Pull- ing 189,213 ■£'« parte; In re Jamea 194 r. Fawcett ... ... 102 I'. Harris ... 134,502 '"■ Sterling ... _ 12 1'- Venables 104 TABLE OF CASES. XXVll Harrison ?•. Forth V. Hart V. Harrison V. Mexican Bail way Co. f. Owen PAGE 232 481 158 269 418 305 171 325 Hartley v. Kusaell Hartopp V. Simpson Harvey's Trusts, In re ... Haselfoot'sEstate,7n.»'e; Chaunt- ler's Claim 229 Hassell, 7» ™ 196 Hastings, /n re 91,93 Hatfield V. Phillips 262 Hathesing v. Laing 346 Hattersley, Ja; parte ... ... 187 Hatton V. Hey wood ... ... 92 Haves iJ. Leader ... ... 169 Hawker, Ex parte; In re Keely 184, 304 Hawkes v. Eastern Counties Rail- way Co. 267,268 Hawkins v. Maltby 526, 529, 531 Hawtry t'. Butlin 208 Haycock's Policy, In re 88, 326 Hayman, Exparte; In re Pulsford 186 Haynes v. Birkes ... ... 4 V. Foster 510 Hay ward, Ex parte; In re Hay ward 181 In re 181 Saydon, 7n re ... ... ... 196 Hearle v. Botelers ... ... 334 Heartley ». Nicholson 414 Heath v. Crealock 226 1). HaU 305 Heathom i). Darling ... ... 366 Hebden ?). West ! 84 Hebe (The) 367 Heffield i;. Meadows 107 Hevnrich v. Sutton ; In rcFiddey 363 Henderson, /« re ... ... 214 V. The ComptoirD'Es- compte of Paris ... 310 Henley, 7re re 214,252 Henry ». Archibald ... 93, 389 V. Great Northern Railway Co 502 Henrys. Smith 138 Hensman v. Fryer ... ... 332 Herbert ii. Salisbury and Yeovil Railway Co 421 Hercules Insurance Co., In re; Brunton's Claim ... ... 266 Herlakenden's Case ... ... 176 Herman •». Hodges ... ... 116 Hernaman i;. Bawden ... ... 372 Heme Bay Waterworks Co., In re 286, 489 PAGE 74 527 469 489 39 415 237 9 112 394 260 19 529 371 309 185 138 380 138 89 386 Heseltine v. Siggers Hewat V. Fitzimons Hewitt V. Corry ... ■■ V. Kaye ... V. Loosemere Heylin v. Adamson Heyman v. Dubois 1". Flewker Hey wood v. Pickering . . . Hibblewhite v. M'Morine Hibbs V. Ross Hickey, In re Hickinbotham v. Groves Hickman v. Upsall Hickmot'S Case ... Hicks V. Sallitt ... Higgins' Case Ex parte; In re Vy\cx ... 388 V. Sargent ... ... 81 V. Scott 363 Higginson u Simpson '... ... 535 Higgs V. North Assam Tea Co. ... 266 . V. Scrader 363 Hill, /Tire 188 v. Royds ... ... ... 11 ■ ■ V. South Staffordshire Rail- way Co. 422 Hilhnan, Ex 'paHe; /ft re Pumfrey 190 . — — — t'.Mayhew 99 Hilton «. Woods 305 Hiudhaugh v. Blakey ... ... 9 Hinds V. Blacker and Coffey 392, 474, 481 Hinks, /» re ; £"3; parte Berthier 195 Hinton v. Sparkes 2 Hirschfield 11. London, Brighton and South Coast Railway Co. 265 Hirschfeld 1;. Smith 17 Hirschman D. Budd ... ... 418 Hirst, &: jparte ; /n 9'e Wheerly 476 Hitchman I). Walton 173 Hoare r. Cazenove ... ... 13 Hobart D. Abbot 476 Holroyd «. Marshall ... 162,304 Hobson f. Bass ... ... ... 106 11. Mellond 313 Hodgkin.^ic^jarte; /«reSoftley 115,223 Hodgkinson r. Kelly ... 522,531 Hodgson, In re ; Hodgson v. Fox 229 r. Hooper ... ... 143 Hodson V. Observer Life Assurance Co 79 Hopewell v, Barnes ... ... 93 Hogarth v. Latham ... 4, 5.5, 265 Holbird t). Anderson ... ... 169 Holder V. Soulby 353 XXVlll TABLE OP CASES. PAGE Holdfast d. Woolama v. Clapham 147 Holdsworth 1?. Hunter ... ... 14 Holford f . Kymer 82 Holland I'. Hodgson 171 Holliday t'. Atkinson ... ... 4 SoWing, Jix parte; 7/1 re Hajdon 196 HoUingwoi-th 1'. Wliite 218 Holme f. Bnirskill ... ... 103 Holmes v. Hell 388 Jaqiies 3,4 312 S3, 191 V. Kidd Holt v. Everall . Homan, L'x parte; In re Broad- bent ... 187,203,214,217 T. Andrews 132 Homer «>. Homer ... ... ... 161 Hood V, Staly brass, Balmer & Co. 12 Hookpaytou v. Bussell ... Hooman, Ex parte; In re Vining 100 214, 217 161 467 150 vi, 38 20 304,320 112 6, 9, 11, 16, 17 173,185 493 Hope V. Haley Hooper v. Giles ... V. Gunner Hopkins v. Abbott . )■. Ware Hopkinson v. Porster • V. Kolt- Home V. Eouquette Horn V. Baker Hough r. Manzanos Houldsworth v. Davenport ... 282 How r. Vigures ... ... ... 478 Howard f. Harris ... ... Ill Howcutt I'. Bonsor ... ... 140 Howe V. Bowes ... 32 liovfeU, Expai-te ... ... ... 291 V. Price ... ... ... 125 Howes 2'. Stone ... ... ... 196 1'. Young 196 Howley v. Cook ... ... ... 64 Howlin r. Sheppard ... ... 376 Huber v. Steiner ... ... ... 6 Hudson r. Carmichael ... ... 126 Hufferr. Allen 388 Hughes V. Kearney ... ... 334 r. Williams ... ... 125 HuUf. Hill 500 Hullett V. King of Spain ... 76 Huhne r. Coles ... ... ... 103 Hvi&e, lix parte ... ... ... 117 Huniberstone r. Chas3 ... ... 500 Humfrey r. Dale . . . ... ... 492 Hungerford r. Coghlan ... ... 474 Hunt r. Mortimer ... ... 192 • V. City of I,ondon Real Pro- perty Co 4C2 PACE Hunter v. XockolJs .,. ,,. 136 «;. Walters 231 Huntingdon f. Huntingdon ... 126 Hurst ». Hurst 479 Husband, /re re 196 Hutley ». Hutley 305 Hutton «. Cruttwell 183 ■!). Sealey 479 Huxtable, £x parte ; In re Coni- beer 191 Hyde v. Skinner 4 0. Warden 233 Ibbotson, Ex parte ; In re Moore 88, 188, 308 Ida (The) 366 Imperial Bank v, London and St. Katharine's Docks Co. 337, 338* Imperial Land Co. of Marseilles, In re ... ... ... ... 225 &! ^arte Colbom 271 Incorporated Society v. Kichards 134 Inman v. Clare ... ... ... 507 InnisfaUen (The) 110 Inns of Court Hotel Co., In re ... 274 Insley v. Jones ... 489 International Paper and Pulp Co., In re; Knowles' Mortgage 276, 296 International Assurance Society, In re 393 Co., In re; Hughes' Claim 423 lona(The) 372 Iredale 1;. Kendall 178 Irons t;. Smallpiece 61 Irvine, In re 308 V. Union Bank of Aus- tralia 269 Irving, In re ; Ex parte Brett ... 308 Isaac «'. Clark ... ... ... 242 Isaacson v. Harwood ... ... 383 Izard, Ex parte; In re Cook ... 184 J. Jackson, In re ... ... ... 188 HJx parte Hail 221 1>. Cummins 335 r. Foster 82 1". Innes ... ... 112 ■ I'.North-Easlorn RIy. Co. 373 «'. Parker 112 TABLE OF CASES. XXIX PAGK Jacobs, fo parte ; Tare J dcjhi ... 103 J a,mss, Ex parte ... ... ... 195 /rereBamford ... 162 1J. Houlditch 32 V. James 228, 472 1>. Magennis ... ... 95 w. Kumsey ... ... 473 Jardine, Ex parte; /jircMoManus 160 Jaiiman, £x parte ... ... 359 V. Woolston 187 Ja,y, Ex parte; /aj-c Blenkhorn 214 Jeavons, 7n }'e ... ... ... 202 Jeeks, In re ... 195 Jeff Davis (The) 363 Jefferys v, Dickson ... ... 92 Jeffs «. Day 315 Jenkins v. Jones ... ... ... 480 Jeukyns v. TJsborne 261, 341, 346 Jenkinaon D. Harcourt 126 Jennings v, Moore ... ... 235 Jenny Lind (The) 375 Jewan v, Whitworth ... ... 255 Jezaph V. Ingram ... ... 166 Johnson ji. Burgess ... ... 92 It. Mounsey ... ... 480 i-. Robarts ... 357,404 V. Royal Mail, &o., Co. 110, 153 V. The Credit Lyonnais 252, 253, 257, 258, 260, 261, 341 Jones, Ex parte ; In re Jones 181, 186 ». Davies... 480 V.Frost 362 r. Harris ,. 218 1). Heavens 62 II. Lock ... ... ... 414 V. Pepperoorne ... 74, 356 V. Smith ... 114, 233, 241 ». WilUams 225 Jordan i". li'arr ... 96 ». Money 385 Joselyne, ^a; fKwie; /» j-c Watt 396 Joyce, In re 208,209 Joyne i;. Hughes .. . ... ... 134 Judson i>. Etheridge 355 K. Kalamazoo (The) 364 Karet v. Kosher Meat Supply As- sociation ... ... ... 220 Kamack (The) 366 Keane i;. Beard ... ... ... 20 Kearley and Clayton's Contract, litre 181 Keechr. Hall 125 Keely, In re 184 ... 122 151,152,351 412, 413 45, 392 Keene v. Bisooo ... Keith V. Burr.jws... Kekewioh v. Mamiinj Kellock's Case Kelly V. Hutton ... V. Walsh ... Kemp, Ex parts ; In re F j,stneclge f. Westbroo'c ... 'Hi. Kendall w. Hamilton ... 89. . ■ v. London and South- western Railway Co. Ill 414 188 4S2 3S8 Kennard v, Furtvoye Kennedy v, Daly .. V. Green Kent V. Riley Kern v. Deslandes Kerr's Policy, In re 349 130 233 235 168 352 422, 424 Keevan, Ex parte; In re Crawford 192 y. Crawford 168 Key, Ex parte; //i j-e Skinner ... 19S Kihhle, Ex parte; In re Onslow 64, 389 Kidd «. Rawlinson ... ... 166 King, Ex parte ; In re King ... 184 /« j'ePa'ethorpe 397 ■ i). Hoare 89,388 «. Smith 110,477,478 K.Zimmerman ... ... 411 of Spain «. Mauhado ... 74 Kingston «. Long 3,56 Kingston's (Duchess of) Case ... 60 Kingstone, ^a; posrfe ; 7ii re Gross 357 Kinnaird v. Webster ... ... ib. Kinnersley v. Mussen ... ... 95 Kirchner i;. Venus ... ... 351 Kirk, Ex parte ; In re Bennett .. . 417 Kirkwood's Estate ... ... 408 In re ... 114 Kitchen «. Ibbotson ... ... 187 Kleinwoart v. Cassa Maritima of Genoa ... Knapp V. Burnaby Knight V. Cambers V. Fitch . . Knights V. Wiflfen Knott, In re Knowles' Mortgage Knox V. Gye (T. Turner ... Kruger v. Wilcox ... 366 ... 424 ... 536 ... ib. ... 3«10 ... 91 276, 296 134,138 ... 405 ... 355 Lacey v. HiU; Crowley's Claim 51 7, 526 528, 529 Scrimgeour's Claim 529 Lacon V. Allen 225 XXX TABLE OF CASES. PAGE liacon f. LiSen ... ... ... 223 Lacy ». Ingle ... ... ... 330 r. Nally 95 liady Downshire (The) ... ... 371 I^aing r. Smyth ... ... ... 74 Lajsder r. Peyton 381 Take, In :e ... ... ... 1S6 Lakeman r. Monntstephen ... 101 Lamb v. Attenborough ... ... 201 I. Bnien ... ... ... 218 TismbUm, Ex parte ... 129 Lancashire and Torksfaire Bail- way Co. ». Gidlow ... ... 423 Langdale r. Whitfeld ... ... \i Lai^dale's Settlement TruEts,7n re 502 Langton «;. Horton ... ... 162 V Waile ... i:i, 157 Lani'on r. Tremere CO Larehin v. North Western Deposit Bank 217 Larios t7, Bonany y Gnrety ... 115 Latham r. Chartered Bank of India 404 Latimer f. Batson ... ... 167 V. Aylesbury and Buck- ingham Itailway Co 335 Laws r. Band 20 Lawson ». Hudson ... ... 126 Lawton c. Lanton ... ... 175 Layard f. Mand 2-^7 Laythoarp r. Bryant ... ... 103 Lea ». 'Wliitaker 62 Leadbitter ». Farrow 6 Leader ;■. Homard ... ... 176 (The) ... ... 360, 363 Leake r. Young ... ... ... 183 Leaskr. Scott ... 302,347,508 Leather r. Simpson ... ... 391 Leathley v. Spyer ... 103, 516 Lebel f. Tucker ... ... ... 17 Lee r. Wihnot 384 Leeds r. Lancashire ... .;. 56 Leeds Banking Company, In, re; Ex parte Vi2tDge ... ... 6 Lees, /» re ... 202 — — i. Whiteley 407 Leese r. Martin 226,228 Leftley ». Milk 12 Leith's Estate, In re ; Chambers K. Davidson 228 Leman Ex parte ; In re Barrand 219 Le Neve v. Le Neve . . . 234, 239 Leonino r. Leonine ... ... 127 Lelts r. Hutchins ... ... 12-3 Levy t). Walker ... ... ... 229 Lewar, In re ; Bx parte Wilks ... 3i0 Lewis, Exparte; In re Hendcr=on In re; Exparte Chautbner lie ; Ex parte Munro ... r. Dnncombe r. Lewis ... Ley r. Peter Lejtou r. Sneyd ... Liebert, In re J^ckbarrow r. Mason PAGE 214 396 305 134 127 134 530 192 302, 343, 344, 347, 364 Lievesley r. Gilmore ... ... 100 Liford's Case 172 Lilford (Lord) v. Powys Keck ... 332 Limder nor (The) 375 Limmer Asphalte Paving Cn. r. Commissioners of Inland Beve- nue 42.5 IJndsay, /n re; £'x|)arfeLambtun 402 Lingard r. Messiter ... ... 185 Lion (The) 372 Ijpscomb r. Lipscomb ... ... 127 Liquidators of Overend Gumey and Co 102,103 Liquidators of Oriental Financial Corporation 102,103 Lister r.Tidd 115 Littledale, Ex parte ; In re Pearsc 506 liver Alkali Co. v. Johnson ... 349 Liverpool Co., Ex parte; In re BnUen 196 Idverpool Marine Credit Co. r. Wilson 152 Uoydr. Banks 310 r. Lloyd and Co. ... ... 4s4 Lloyds' BanMng Co., Ex parte ; In re Bichard V. Ogle Load r. Green Lockhart r. Hardy Locking r. Parker Lock wood r. Ewer Lockyer r. Offley Lomax v. Buxton V. Hide ... London Assurance v. Mansel and City Banking Co., Exparte;. /»re Brown Connly Banking Co. V. Dover ... Brighton and South Coast BaQway Co., in re London Discount Co. (The) r. 209 . 466 . 1S9 . 392 1, 134 . 157 ^^l . 183 . 124 . SO Drake . - Financial Stevens . Association v. 93 479 360 172 2S0 TAliLK OF CASES. XXXI London Hamburg and Continental Kxchange Bank ; In re Zulueta'H Claim and Westminster Loan t'd. 7'. Ohaco 5:30 217 nnd Westminster Mutual Life AHHurance Co., In re 85 Ijonergan, /« )r ;., ... 111,424 Longbottom I'. J5eiry ... ... 20S Lfingdendale Cotton Spinning Co., hire 48y, 484 Lonsdale (Lord) v. Chureb ... 62 Lord D. Wormleighton ... ... 360 Louisa (The) ZGi Love, /« re ... ... ... 203 j/ovoridjje, /ij;j5a)'te; /nrcTunes 185,lli5 — . ,,. Cooper 113, T-yi, 307 l.owi'ing, Ex parte ; /ji re I'caooek 11)5, 396 Lowo V. Blaekmoro ... ... 3!)C JjDWs i>. Telford ... 110 Luuiis J). Dennieon ... ... 139 Jjucena r. Crawford ... ... 82 hiiOlow, Ex parte ; /nreHancoek 187, 355 Luko V. Soutb Kensington Hotel C. _ ... Lutschcr V, The Comptoir d' Escompto de Paris Lycett V. Stafford and Uttoxeter Railway Co Lynch, Ex parte ... Lynn v. BbU Lyon V. Weldon ... Lysaght V. Edwards V. Wcstmacott 476 302 336 Gl 20 189 329 476 M. M. re, an Arranging Creditor ... 400 Maber V. Mabcr ... .. ... 383 Macdonaldj). Irvine 85 V, Law Union Insurance Co 80 Mace JJ. CadduU 187 Maokay, Ex parte ; In re Jeavons 202 V. Douglass .,. ... 168 Mackenzie w. llobinson 478 Mackreth K. Symmons ... 113,330, 332, 334 Macnee t>. Gorst ; 255 Mageo 1). Lavell ... ... ... f'2 Maingay r. Lewis 102 Maitland r. Tlie Chartered Mer- cantile Bank of India, London and China 43 Mallet J). Batcman ... ... 101 Mailing Union ti. Orahani ... 101 Malone v. Geraghty 228 Midtby 1/. Murrella 471 Man «>. Kicketts 131 ftlatm, Ex parte ; 7)t rt Kaltungell 4l)4 J\1 iiimiDg t). I'tiroell ... ... vii Maplebaclc, /n re; Ex parte Caldc- cott Margaret (The) Marine Mansions Co., /ft re Investment Co. v, Haviside Market-Overt, The Case of Marpesia (The) JtlaTra,}Ac, Ex parte Marsh v. Loe Marshall r. Crowthcr r. ShrowHbiiry ... Mars-le-Blanch v, Wilson Martin v. London and iMnn Kly. V. Reid V, Whitmore Martindale r. Booth Martineau K. Gale Mary Ann (The) Marzetti v. Williams M'Askie v. M'Kay Mason and Taylor, In re V. Wood ... Mason's Will, 7i!e . . . MasBey v, Sladen Massy v. Donovan Master v. Miller Masters v. Ibbers(m Maston i; Woods Matanld, In re Mather v, Frazer Mathers, In re Matheson, Re 1). Robs Mathews v. Keble Matthew v. Bowler V. Brise V. Frazer 190 361 275 428 252 370 187 113 370 229 350 223 242 ... 162 ... ir>6 ... 298 372, 373 ... 20 ... 412 ... 358 ... 218 vi, vii ... Ifil ... 474 ... 418 4 ... Ill ... 197 ... 207 187, 188 ... 502 ... 427 63, 422 ... 332 ... 134 ... 108 Northern Assurance Co 88 Matthews v. Cartwright 114, 244 v. Wallwyn 112 Maugham v. Sharjio 219, 241, 481 Maundrell J). Maundrell 231 Maund's Case ... ... ... 301 Mauritz, if.* parie ; Hedilua ... 396 Maxfield f. Burton ... 234,238 Maxtod V. Paino 521, 522, 524, 527, 530 Maxwell I). Hyslop 127 II, TuohiU 422 XXXll TABLE OF CASES. PAGE Maxwell t'. Whitwick ... ... 476 Mayer v. Murray ...111, 123, 480 Mayo's (Lady) Case 500 Maytin V. Hooper ... ... 386 Mayor of Kidderminster v. Hard- wick 268 MoEwen v. West London Wharves and Warehouses Co. ... ... 75 McEwan ». Smith 338 McGonnell ?;. Murray ... ... 415 McKewan's Case 422 McLaren and Hope j). Vlemiilg 328, 358 McManus, 7(1 9'e IfiO McQueen 1). Farquhar 232 M'Donaghs, 7ji re 106 M'Donnell 1). Murray ... 80,411 Meade r. Mouillott 467 Medina (The) ... 368 Meggy V. Imperial Disocunt Co. 185 Megrath «. Gray 103 Melanotte v. Teasdale ... ... 1 Melbourne Banking Co. 1-. Bruxigham476, Meldrum, /m re 193 Mellor t>. Sidebottom 473 Mellor's Policy Trusts, 7n re ... 83 Mellish w. Vallens 127 Mellcna (The) 365 ' Menziea ». Lightfoot ... ... 112 Mercantile River Plate i: Isaac 470 Mercer ». Graves ... ... 360 D. Paterson 184 Mercers' Co., Ex parte 57 Merchant Banking Co. v. Phoenix Bessemer Steel Co 264 Merchant Banking Co. v. Spotten 161; 200 Merchants' Bank of London v. Maud 409, 410 Merry v. Nickalls ... . 525, 527 Messenger, In re ; Ex parte Calvert 359 Messina ». Petrocoohino .. . ... 366 Metcalfe v. Archbishop of York 162, 228 Metters i>. Brovm 479 Meux V. Jacobs 1 29, 207, 229 Meyer, Ex parte ; In re Stephany 1 80 Meyerhoff t). Proehlich 383 Meyerstein V. Barber ... 241,347 Middleton, 7n re 219 D. PoUock ... 191,385 Midland Banking Co., Ex parte ; Tie Sellers 106 Railway Co. r. Chambers ib. Mildred «;. Austin 93 Miles u Turber 179 Miller v. Cook 64 r. Race ... 26, 27, 263, 264 PAGE MiUettr. Davey 125 Mill< «;. Barber ... ... ... 4 Milur. Walton 386 Milroy r>. Lord 413 Minnehaha (The) 374 Minnitt r. Lord Talbot 376 Miiiton t'. Kirkwood ... ... H7 Misa t;. Currie 429 Mitchell V. Lancashire and York- shire Railway Co S.'ifl M'Fattie, Ex parte; In re Wood216, 21 7 Moakes r. Nicholson 344 Meet V. Pickering 365 Moher ?). O'Grady iO, M.o\ine. Ex parte 1C6 Monk t;. Whittenburg 2C1 Moodie v. Bannister 140 Moody t). Spencer 360 Moor «;.Anglo-Italian Rank 196,267,397 Moore, ia; jsarte ; ii'e Cook . ... 1S6 7»ire 88,188,308 1!. Bowmaker ... ... 90 1-. Gregg 229 . — V. Manning ... ... 5 ■ V. Moore ... 412, 413, 414, 415 161, V. Ulster Bank ., V. Warren Morgan v. Evans ... V. Lariviere V. Mallfson V. Rowlands Morland v. Isaac Morley v. Attenborough Morrell v. Cowan V. Eisher Morrioe v. Aylmer Morrison, Ex parte Mortimer, In re ... f. M'Callan . Moss, 7m re V. Gallimore Mossop V. Badon ... Mostyn v. West Mostyn Coal and Iron Co ri7 Moule i". Brown 19 !;. Garrelt 142 Mowatt V. Lord Londesborough 423 Mower's Trusts, 7» re 394 Muilman v. D'Eguino 10 Muir D. Crawford 102 Mulliner v. Florence ... 241, 348, 354 Mumford f. Stohwasser 237 Munns v. Isle of Wight Rly. Co. 336 Munro, Ex parte 305 Murdoch t). Warner ... ... 462 Mure, Ex parte 392 414, 415 10 306 413 383 405 250 107 200 498 361 180 517 360 125 30 TABLE OF CASES. XXXIU PAGE Murray I'. Tush 483 V. East India Co. ... 4 r. Maokensie ... ... 217 Mu.=grave and Halt's Case 531, 532 Mutlcw r. Bigg 134 Bliittou, i'xpcDte; In re Coin 213,214 N. Natal Invebtment Co., In re; Claim of the Knaneial Cor- poration... ... ... ... 273 Land Co. v. Good 233 National Bank, Ex parte 225, 228 ■ Guardian Assurance Co., Ex parte j In re Traneis ... ... 186 Iron Ore Co., /)i I'C ... 276 Permanent Building So- ciety, In re ; Ex parte "Williams 298 . Savings' Bank ?;. Tranah 390 175, 176 349 Neat V. Duke of Marlborough . 92 Naylor v. CoUinge V. Mangles Needh am t'. Johnson ... ... 221 Nelson Browne (The) 366 Neptune (The) 364,367 Neve r. Pennell ... 114,225,239 Newberry w. Colvin ... ... 351 Newcastle, Duke of. In re ... 92 New Clydach Sheet and Bar Iron Co., /rare 275 Newland, Ex parte ... ... 358 Newman, In re ... ... ... 62 D. Selfe 479 Newmarch, In re... ■ — V. Storr 127, 128 127,128 Newport Credit Co., Ex parte 203, 205 Newton r. Newton 226 New Zealand Banking Corpora- tion, Ex parte Nicholson v. Cooper V. Goooh 273 220 517,535 520, 523, 525, 528 470 Insurance NickaUs «. Merry Norris v. Beazley . . . V. Caledonian Co 406 ■!;. Sadleir 90 North t;. Wakefield 380 Assam Tea Co., In re; Ex parte Universal Life As ■ surance Co. ... , ... 266 Western Bank, Ex parte; AreSlee 203 Northern Invesiiinent and Dis- count Co., Ex i-aite; In re Carlisle 213. Norton, Ex parte ; In re Golden 193 In re 190 V. Ellam 26 Nottingham Hide Co. r. Boltrcl 107 Noyes ■!>. Crawley 382 Nvmu f. Willsmore ... ... 165 Nymph (The) 365 0. Oakes r. Turquand and Harding 268 O'Brien, 7)n-e 218 O'Loughlin u. Fitzgerald ... 116 Ocean Wave (The) 372 Odell, Ex parte ; In re Walden. . . 203 Ogden V. Benas ... ... ... 22 Ogilvie t'. Jeaffreson ... ... 234 Ogle V. Knipe ... ... ... vi Ogur r. Bradmin . . . ... ... 471 Oldham i). Kamtdeu ... ... 535 Oliver f. Bartlett 185 Onslow, 7m re ... ... ... 64 Onslow's Trusts, In re ... ... 93 Ordi;. White 312 Orient (The) 365 Oriental Bank, £a;j3aj'te... ... 234 Commercial Bank, Ex parte ... ... ... 312 Commercial Bank, In re 391 Financial Corporation, Exparte 90 Orr and Barber v. Union Bank of Scotland 42, 43 Osborne D. Hanburg 489 Osgood V. Groning 350 Otter V. Lord V.aux 116 Overend, Gurney and Co., In re. Ex parte Lintott 423 Owen K. Braddell... 228 V. De Beauvoir 133 v. Kouth •158 P. Padley v. Camphausen ... . . 463 Page V. Newman ... ... ... 422 Paget iJ.Ede 473 V. Foley 140 Paioei". Walker 493 Paine v. Hutchinson . . . 531 , 632 Palk t;. Clinton 112 Palmer c. Earl of Carlisle ... 475 XXXI V TABI>E 01? CASES. PAGE . Palmer i!. Eyre ... ... ... 133 D. Heilclrie ... 392,410 Panama (The) 366 New Zealand and Aii'stra- liasi Koyal Mail Co., /jire 270,271, 275 Pannell, Ex parte; In re Enyl md 472 I'ardo f. BiDgham ... ... 135 Parfitt i». Ghambre ... 62,117 Paris Skating Rink Co., 7n rs ... ,483 Parker w. Plint 353 r. Marchant vi Parkes t;. Housefield ... ... 479 Parkinson «. Hanbury ... 110,123 Pq,rrot II. Sweetland ... ... 335 Partington v. Attorney- G-oneral 421 . w. Bailey 408 Partridge u- Bank of England ... 500 Patent Bread Machinery Co., In re; Ex parJe Valpy and Chaplin 225, 276 Patent Pile Co., In re ; Ex parte Birmingham Banking Co. 225, 269 Patterson «. GandaBeqni 492 W.Doyle 93 II. Williams 387 Pavy's Felted Pabrio Co., In re 375, 403 Pawlett ?). Attorney-General ... 130 Peaohey v. Duke of Scimerset ... 62 " " ... 195 ... 167 390, 508 ... 179 ... 5,7 ... 112 131,136 ... 530 ... 507 ... 123 ... 361 ... 484 Peaoookj In re I', Monk 1!. Purssell V. Purvis V. Rhodes Pearce v. Morris . . . Pears v. Laing Pearson *■, Scott ... Pease, Ex parte ... V. Jackson Peatfield u Barlow Peek V. Trismaran Irop Co. Pell V. Northampton and Banbury Junction Kail way Co. .. . ... 336 Pellas II. Neptune, &c„ Co. ... 302 ■Pellew, In re 220,221 Pemberton, S; piwie ... ... 338 Pembroke «(. Friend ... ... 127 Penmar Railway Co., /» re ... 269 Penton t>. Eobart... ... ... 172 Perry ti. Barker 111,392 •<;. Turner 98 Peter i>. NiohoUs 232 Petre V. Petre ... ... ... 134 Petrie ». Duncombe ... ... 422 Petty u Cooke 102 Peytoe's Case ... ... .... 61 Peyton's Case ... ... ... 381 Phene v. Gillan . . . Philips V. Hornstedt Phillipan, Ex partg Phillipine (The) Phillips V. Foxhall V. Henson ..." V. Huth ... V. Ira Thurn Phillipps V. Phillipp'5 Philpot V. Bryant Piokard v. M arriage ... 1 9 8, V. Seal's ... PiokeriiJg v. Bush V. IlfracQinbe Rly. C Piggott V. Birtles Pigot V. Cubley ... pigot's Caie Pilcher v. Arden V. Rawlins Pile V. Pile ; Ex parte Lambton Pirn V. Harris Pinkerton v. Baston Piper T. Piper Plimley v. Westley Plumb I). Fluitt ... Pockley v. Packley Poirier v. Morris . . . Polak V. Everett . . . Pol glass V. Oliver Pollock V. Campbell ii. Stables Ponsford v. Walton Pontifex v. Midland Railway Co. Poole's Case Pooley, In re V. Driver ... PAGE ... 157- 180, 196 207, 229 362 101 179 262 13 473 9 214,218 385 252 275 179 242 418 363 238 129 422 363 311 4 233 125 14 101 32 470 528 427 489 176 127 194, 308 317, 468 421 259 242 40 16 95 Popham V-. Bamfield Portalis v. Tetley Pothonier v. Dawsoji Pott V. Clegg Potter V. Brotm ... V. Nicholson Potteries, Shrewsbury and North Wales Railway Co. v. Minor 289 Povah ly. Walker 325 FoweU, Ex mrte; /jn'e Mathers 187, 188 Power r. Harrison 168 Powles 41. Hargreaves ... ... 399 Prange, Ex parte ... ... ... 6 Prees v. Coke ... ... ... Ill Prehn and Another v. IJoyal Banlc of Liverpool ... ... ... 45 Preston w. Christmas ... ... 61 V. Daina ... ... ... 63 — , V. Neele ... ... ... 405 TABLE OF CASES. XXXV PAGE Price 1'. Barker 380 -e. Groom IS9 ■ ■ V. Jenkins ... ... ... 169 r. Moiilton (iO Prideaux v. Cri Jdle ... ... 19 Prince f. Oriental Banking Cor- poration ... ... ... 356 Pringle?>. Gloag 36.t Printing and Universal Itcgis'icr ing Co., 7)1 )•!! ... ... ... 196 Pritcliard i". Roberts ... ... 362 Pressor r. Edmonds ... ... 305 I'rudential Assurance Co. v. Ed- monds ... ... ■ Pryce, In re ; Ex parte Rensburg - V. Bury Pugh V. Orfon Pulling, In re Pulvertcft v. Pulvertof t . . . Purisima Concepcion (The) Queen v. Rymer . . . Quinoey, Ex parte ■ V. Sharpe 81 188 223 ... 176 189, 213 ... 232 ... 366 353 176 384 Eadikissen I). Mullick 10 Raffety i". King Ill Ralli «. Dtennistoun ... ... 16 Ram Coomar Coondro v. Chunder Canto Mookerjee ... ... 305 Ramsden V. Lupton ... 220,221 Rand n. Bayham 178 Eankeu i". Alfaro . . . ... ... 403 ^. 'Weguelin • 415 Raphael i;. Bank of England ... 27 ilatcliffi;. Davis 244 Ratoliffe i-. Barnard 234 Rawson i). Dicke . . . ... ... 128 Ray V. St. Dunstan 176 Rayner, Ex parte ; In re Johnson 196 Reader, Ex parte; In re Wrigley 193 Readhead t;. Welton 396 Reardon u Swabey 441 Redmayne v. Burton ..-. 30, 411 Reed, /» re ... . 186,187,191 Reed v. Royal Exchange Assur- ance Co. ... ••• •■• 82 Reed and Steel, Ex parte; In re TweddeU 184 Rees w. Berrington ... 102,104 Reese Silver Mining Co, v. Atirell 168 PAGE Reese Silver Mining Co. v. Smith 268 Reeve «>. Wliitmore ... ... 162 Reeves t>. Capper .. . ... 159,241 Reg t'. Creese ... ... ... 220 V. Gilchrist ... ... ... 57 Regent's G.'inal Iron Woiks Co.,_ In re Reid I'. Furnival ... Ronnie v. Young ... Rensburg, In re ... Repulse (The) Reynolds d. Bowley Rice V, Rice Richard, In re Richards & Co., In re Richards r. Delbridge V. James Richardson r. Richardson V. Younge . , Riches v. Evans ... Richmond r. White Rickford i>. Ridge Riga (The) Risoley v. Ryle 270, 364, 274 608 376 188 365 ... 186 230, 231, 330 ... 209 ... 196 413, 414 ... 219 ... 413 ... 132 ... 169 ... 229 19 373 177 In re; Mit- 383, 384 River Steamer Co., chell's Claim . . . Robbins v. Goldinghaffl Roberts v. Croft ... (J. Edwards i: Hughes Robertson V. Howard ■ V. Norris Robey & Co.'s Perseverance Iron Works V. Oilier Robinson v. Bland 360 230 85 476 467 480 404 15 213 200 20 161 402 356 122 396 384 140 V. Colhng wood V. Hawksf ord ... -ci. Maodonnel ... V. Mollett Robsion w. Kemp ... Roby V. Maisey ... T{,oc]ie, Ex parte ; /» re Hall Eockham f. Marriott Roddam v. Morley Rodger v. The Comptoir D'Es- compte de Paris ... 315,345 Eoe i;. Bradshaw ... 217 Rogers, /re « 196,196 V. Langford ... ... 7 Rolf e «. Peterson ... ... 62 Rolin «. Steward .. . ... ... 20- RoUand «. Hart 235,239 Rolls I'. Pearse ... 415 Rolt 1). Watson 411 Rorke D. Sherlock ... ... 91 c2 XXX VI TABLE or CASi:S. Eosa V. Page Roscon r. Hardy ... Bose (The) V. Watson , . . XloBsiter r. Miller Kothevy v. Wood Botbsohild v. Currie Kouquette v. Overinann Eow V. Dawson . . . Kowe V. Tipper PAGE 47G 11 152 335 103 178 17 10, 16, 17, 18 304 6 Scholefield r Lock Lock wood ... Roy, Ex parte J /» re Sillence 185,255 Koyal Arch (The) 365 Royal Bank of India's Case ... 156 British Banlc v. Turqiiand 269 Exchange Assurance Co. v. Moore ... Liver Friendly Society, lie Koylance v. Lightf oot ... Rudge V, Richens Rumball v. Metropolitan Bank . . . Rummena v. Hare Runnacles v. Mesquita ... Runtz V. Sheffield Rusden v. Pope ... Rush, In re Rushbrook v, Laurtnce ... Russell V. Moseley Russell's Policy Trusts, In re ... Russell Road, In re V. Russell ... Eustou V. Tobin . . Rutty V. Benthall Ryall v. Rolle Byalls v. Rowles . . 529 432 122 ... 392 75 ... 315 ... 467 ... 467 ... 151 ... 92 ... Ill ... 104 ... 309 ... 113 109, 224 ... 462 ... 427 189, 412 ... 073 S. Sackville u Smyth 128 ^aSery, Ex parte ; In re Cooke ... 193 Saffron, &c. , Society r. Eayner ... 234 St. Thomas Dock Co., /n ?-e ... 483 Sampson i;. Pattison ... ... 485 Sandeman «. Scurr ... ... 351 Sandon D. Hooper ... ... 124 Sands ti. Clarke ... ... ... 11 Sankey Brook Coal Co., /u re ... 275 Saracen (The) 365 Sarah Bremner, £'« j;arte ... 359 Sargent, .fi'a; parte ... ... 269 Saunders r. Dunman ... ... 474 •!;. Miliome 383 Saunderson u Aston ... ... 101 Saville «>. Campion ... ... 351 Scaife V. Warrant ... ... 349 tivho&eM, Ex parte ; 7?e Trith 507,511 TACB 124 362 410 314 197 Sohoole and Wife v. Sail Schotsman v. Lancashire and Yorkshire Railwaj' Co. Sclralte, Ex paHe ; In re Matanl($ Schroeder v. Central Bank of London 304,320 Scio (The) 152 Scott iJ. Beeoher ... ... ... 126 ■!). Cousins 575 . V. Insley ... ... ... ib, !). North ib. ■ V. Lord 'Hastings 93 v.USovA 6,386 Seade v. Law Seaton v. Twyf ord t'elby V. Selby Shaftesbury (Earl of) r. Russel Shand v, Du liuissou Sharman v. Brandt Sharp V. Foy Shaw, lie Shaw ■Se V. Bunny V. Foster V, Neal Ex parte 224, 310, ... 315 ... 122 ... 331 ... 187 ... 304 ... 402 ... 236 ... 203 ... 187 ... 116 329, 335 327, 362 ... 217 Shears v. Jacob ... Sheen, Ex parte; 7)ireWint,tanley 184 Sheffield «. Eden 358 Shell, Exparte; /rereLonergan 111, 424 Shellard, Ex parte 437 Shephard i-. BlUott 124 Shepherd J). Gillespie ... ... 526 V. Harrison ... 344, 400, 507 Sheppard v. Murphy 522, 525, 528, 532 Sherran v. Marshall 96, 97 Sherburne v. Lord Huntingtower 96 Shirrtff v. Hastings 91, 93 Shoebrook, Exparte ... ... 227 Shropshire Union Railways and Canal Co. v. The Queen 15?, 224, 267 Shute i". Robbins . . . ... ... 10 Sibree D. Tripp 39, 40 Sichell's Case ... ... ... 157 Sidneys. Sidney ... ... ... 416 Siebert r. Spoouer ... ... 182 Siffken t>. Wray 346 Sillence, 7m re 185,255 Silver Bullion (The) 365 Simmondsti. Great Eastern RIy. Co. 369 Simms, Ex parte ... ... ... 196 Simonds V. Lawnds ... ... 148 Simpson v. The Accidental Death Assurance Co. ... ... ... 81 Simpson's Case ... ... ... go TABLE 0^ GASES. XXXVll PAGE &ims, Re parte ; fn re Gmhh ... 196 Sinclair i: Great Eastern Eailway Co i23 Sir Kalph Abercrombie (The) ... 368 Skeet V. Lindsay ... ... ... 384 Skinner, /in'e 196 Slader. Rigg 481 Slater v. Darlington Steel Co. ... 484 v. Pinder ... ... 195,396 Slater's Trusts, /rt « 421 Slee, In re 203 Slingsby ?i. G-rainger ... ... 497 Sloman f. Bank of England ... 500 — 1). Walter 62 Smale f. Burr ... ... ... 221 Smallman'a Estate, /» re ... 2-32 Smait, Hx parte ... ... ... 400 V. Sanders ... ... 356 Smith, Ex parte 315,361 In re ... ... ... 196 Arthur Heavens, Inre ... 108 V. Accident Insurance Co. 80 i;. Bond 63 v. Chase 216 V. Cork and Bandon Eail- way Co. D. Dearlove V. Egginton V. Gould . . . D.Hill ... V. Hull Glas: v. Knox . . . r. Low V. Mercer . . . V, Mundy . . . V. Nightingale 1'. Pilgrim V. Rioha- dson Co. ■ V, Robinson V. Smith . . . V. Sorby ... i: Timms ... V. Topping V. Union Bank of London 25 ... 502 ... 352 ... 125 ... 366 138, 141 ... 77 9 ... 233 ... 11 ... 30 3 ... 192 ... 471 ... 479 93, 310 ... 61 ... 183 ... 189 V. Weguelin Smurthwaite v. Wilkins . . . Sneary v. Abdy ... SneU, In re Snellgrove v. Baily Softley, In re Solby f . Eorbei Solomon V. Graham V. Solomon Solomons !>. Bank of EngLand South, Ex parte ... In re 27, 74,75 302 195 358 415 223 381 95 127 263 307 92 PAGE South Essex Estuary Co., In re ; Ex parte Chorley 299 ■ V. Reclama- tion Co., In re ; Ex parte Payne and Layton ... ... ... 359 Southam, Ex parte 202 Southwell j;. Bowditch 493 Spaokman u Miller ... 185,187 Sparke, /»« 220,221 Spearman i). British Empire Mutual Life Assurance Co. ... ... 406 Spencer v. Clarke hi, 88, 230, 237 «. Slater 169 Spencer's Case ... ... ... 142 Spicer i). Bacon ... ... ... 353 Spoouer, fe paric ; in re Smith 196 Sporle V. Wharman ... ... 228 Spratts' Patent v. Ward & Co 462 Squire, Ex parte; In re Gouldwell 427 Stainbank ti. Sheppard ... ... 366 StandardDisoountCo. v. La Grange 467 Stanley V. Stanley 385 Stanley's Case ... ... ... 275 Stansfeldv. Cubbit ... 219,221 Stansfield 1'. Hobson ... ... 139 Staple t;. Young ... ... ... 489 Stapleton, Ex parte ; In re Nathan 346 Stead, /m re 137 Steel JJ. Brown ... ... ... 169 • Plant Co., Ex parte ; In re Williams 468 Steele, 7)1 re 202 V. Stuart 404 Stephany, /« re ... ... ... 180 Stephens r. Willings ... ... 124 Sterling, i'x parte 358 Stevens, Ex parte ; In re Stevens 220 V. Mid-Hants Eailway Co. 290 «. PhiUips 93 Stewart f. Gladstone ... ... 229 w. Sanderson ... ... 502 r. Todd 387 Stileman J). Ashdown ... ... 478 Stock V. Holland 195, 196 Stockton Iron Eurnacd Co., In re 205 Stokoe «. Cowan .. . 82 Stone V. Stone ... ... ... 134 Storey r. Waddle 462 Strathmore r. Bowes ... ... 168 Strong 2). Bird ... ... ... 381 Stuart r. Cock erell 309 Sturge r. Eastern Uiiion Eailway Co 502 Stnrtev.ant r. Eord 312 Suche, Joseph and Co,, /m re ... 45 XXXVlll TABLE OK CASES. Sug"i;, Silber Suinpter r. Cooper Suse V. Pomp Sutton V. Bath — — — D. Toonier Sutton's Trusts, In re Swain v. Wall Swan, Ex parte .. . Swan's Estate, In re Sydney Cove (The) T. Taaffe's Estate, In re Tagart, Ex parte Talbot V. Ytere ... Tanner v. Scovell Tardiffe v. Scrughan Tassell v. Lewis V. Smith Tate, Ex pa/rte ; He Tate ■ V. Hilbert 1>AGE ... 402 ... 224 ... 15 ... 218 ... 38 88 ... 105 13, 313 ... 408 ... 375' ... 473 ... 229 229, 244 ... 344 ... 332 4 ... 114 ... 192 20, 415 ... 473 Tawell t). Slate Co. Tayler v. Great Indian JPeninsular Railway Co. ... 529 Taylerson «. Peters 177 Tayleur u. Wildin 101 Taylor v. Chichester and Midhurst Railway Co 268 V. Cockrum ... ... 191 1). Eckersley ... 189,216 ■ u. Lanyon ... ... 178 ti. Manners ... ... 418 . u Jones ... ... 170 1). Steele 38 V. Stray . . . 525, 626, 528 Teasdale 11. Brathwaite ... ... 169 Tebb?;. Hodge 224 Teed D. Carruthera ... ... 334 Teignmouth v. General Mutual Shipping Association ; Martin's Claim 427 Tempest t'. Kilner 320 Tennant v. Trenchard ... ... 485 Tew V. Lord Winterton ... ... 62 Thaoker w. Hardy ... 535,536 Thackrah ■iJ. I'erguson ... ... 254 Thackwaite t'. Cook ... ... 185 Thames Iron Works Co. v. Patent Derrick Co. ... ... .. 348 Theodore (The) 368 Th4vhse Sc Co., In re 196 Thetis (The) 367,368 Thomas I!. Cross ... ... ... 92 Thompson r. Cohen V. Gardiner V. Grant 0, Hudson V. Lacy V. Langridge ■ V. Webster Thomson v. Davenpnrb Thornborough v. Baker Thornioroft v. Crockett Thornton v. Adams V. Finch Thorpe v. Houldsworth PAGE 191 527 123 ..' 62, 117, 124 353 98 168 492 123 124, 125, 477 17S 92 226,287 30ii Three Sisters (The) Threfall I'. Borwick 352 Tidswell v. Angerstein ... ... 82 Tiley u Courtier 37 Timmins w. Gibbins ... ... 32 Tipton Green Colliery Co. v. Tip- ton Moat Colliery Co. ... 474 Todd V. Moorhouse 376 V. Stewart ... ... ... 89 Toft V. Stephenson 13 1 Tdmkins v. Ashhy ... ... 38 11. Culthurst 395 V. Saflery 183, 192, 517 Toms II. Wilson 164 Tondeur, Ex parte 44 Tonnies, /ft re ... ... ... 191 Tooker t>. Wilson 481 Tooth II. Hallet 310 Topham, .ffa; parte; 7n « Walker 192 Torrance i>. Bolton 335 V. British Bank of North America ... 12, 102 Torrington v. Lowe Toulmin v. Steere Townend v. Toker To wnley «. Crump Travers v. Blundell Trent v. Hunt Trestrail v. Mason Trethowan, In re; Ex parte Tweedy ... Trimbey v. Vignier Trimingham v. Maud Triston v. Hardey Troubadour (The) Troup's Case True Blue (The) Trumper v. Trumpc-r Trulook V. Roby . . . Tucker v. Wilson Tunstall v. Bootby Turner, In re 5-32 116 169 189 161 122 127 181 V. Liverpool Docks Co. 208 15,16 , 401 , 406 , 153 . 298 . 368 . 395 . 139 , 157 , 304 197 344 TABLE OF OXSUit. XXXIX PAGE ... 335 ... 12 ... 362 326, 409 ... ]84 ... 334 ... 208 153, 365 ... 507 ... 389 ... 360 73, 75 424 Turner v. Marriott V. Samson Tnrnley v. Desborough . . . Tiu'quand v. Fearon Tweddell, In re ... Tweed r. CaiTutliers Tweedy, Ex parte Two EUens (.The) Twogood, Ex parte Twopenny v. Yoiiiig TVort V. Dayrell . . . TwyorosB v. Dreyfus Twjnam v. Porter . Tyler v. Yates Tyrell v. Bank of London XI Ulster Banking Co. v. M'Kin- ney ... ... ... 468, ITnion(The) 367, Union ]3ank of London v. Lenan- ton 150, 153, Union Banic of Manchester, Ex parte ; In re Jackson ... United Service Co., In re; John- ston's Claim United States of America i-: Wagner Unity Joint Stock Mutual Bank- ing Association v. King Universal Life Assurance Co., In re Unsworth, In re Uruguay Central and Hygutritas Ely. Co. of Monte Video, In re ill, Ufcborne v. Usborne V. 470 375 200 188 357 266 424 483 122 Vale V. Oppert ... 358 Valpy and Chaplin, .& parfe ... 276 Vanama(The) 366 Vance i;. Lowther 418 Vanderzee I'. WiUis 244 Vane, /)i « ... ... ■•■ 184 VaudervaU v. Tyrrell 13 Vaux, Sx paiie ; In re Couston 187 Vavassevir v. Krupp ... . 75 Vtalj). Veal 15 Vickers 1'. Hertz ... ... 261 Victor (The) 370 Villars, Ex parte ; In re Eogers 195, 196 Yhv as, Ex parte ; In re Gwynne 196 Vining, /»« 214,217 W. Waddell r. Toleman Wade's Case Wain V. Bailey • V. Warlters Wainwright r. Bland Waithaim v. Elsee Wakefield v. Stnythe Waldy r. Gray ... Walker v. Bartlctt V. Hicks ... V. Jones ... V. M'Donald V. Ware, Hadam and Buntingford Ely. Co. £31 Walker's Mortgage Trusts, In re Wallis v. London and South- western Eailway Co. . . . Walmsley v. Chikl Walsh V. Nally ... Walters f. Wtbb Walton, iJc Wansborough v. Maton Want V. Blunt Ward, Ex furte ; In re Couston V. Audland V. Booth ... r. Carttar V. Hepide v. Turner Ware r. Gordon ... V. Lord Egmont ... ... 228 ... 147 ... 411 ... 104 ... 83 ... 448 ... 389 226, 235 ... 527 ... 466 111, S13, 410 5 ,336 148 375 411 95 149 193 177 81 189 61 115 123 360 415 169 233 368 390 105 234 413 447 207 187 Waring, Ex parte Warnock's Estate, In re Warre t". Calvert Warrick v. Warrick Wan iner v. Eogers Warrington r. Purbor ... Waterfall v. Penislone ... Wilkins, Ex parte ; In re Couston Watson, Ex parte; In re Love 203, 345 . ■!). Main 178 v.Mid-WalesEly.Co. 299,312 v. Eussell 265 ■!). Woodman ... ... 134 Waugh's Trusts, i?e 406 Wayne I?. Hanham ... ... 481 Webb V. Commissioners of Heme Bay 266 Webb's Policy, /» re 309 Webster ti. Cook ... ... 64 Weeks i;. Maillardet 161 Weguelin v. CelHer ... ... 351 Weikersheim's Case ... ... 15(j Weir, Ex parte ; In re Weir ... 180 xl TABLE OF CASES. "VVekett «. Eaby ... - ... Weldon v. Gould Wells y. Poster • V. Kelpin ... Weutworth v. BuUen . 97, V. Outhwaite West V. Keld Westboume Grove Drapery Co., In re Western Life Assurance Co., Ex parte ... of Canada Oil, Land and Works Co., In re Weston V. Woodcock Weston's Case Westropp V. Solomon West's Estate, In re Westzinthtis, In re; Ex parte Alston ... Wetherall, Ex parte Wharlton v. Kirkwood ... Wharton v. Naylor Wheeler i;. Gill V. Montefiore . . . Wheelton v. Hardisty Whetstone v. Dewia Whistler v. Hancock Whitaker v. Bank of England ... Whitbread, Ex parte 11. Lyall White V. British Empire Mutual Life Assurance Co. 82, V. Carmarthen, &c., Rail- way Co. V. Sealy ... V. Simmons ?AGE 417 355 30i 93 , 100 346 227 45' 331 484 176 172 529 111 347 385 164 178 423 110 80 473 471 20 227 476 ,407 •;;. Willcs ... Whitehead r. Anderson V, l2od V. Walker . 298 62 ... 397 ... 185 344, 345, 346 ... 528 ... 10 ... 106 ... 185 305 417 237 Whiting ji. Burke Whitmore v. Empson Whitting, In re ... Whittook V. Walham Whitworth v. Gaugain ... ... Wickham v. New Brunswick and Canada Rail way Co. 291 V. Nicholson ... ... 479 Wilby t). Elgee 384 Wiloocks V. Wilcocka ... ... 162 Wilde, /re re 208,209 Wilkes, Ex parte 310 -J'. Dudlow 101 Wilkinson I'. Grant 120 r. King 252 J). Verity 382. IWOE Willans r. Ayers ... ... 8, 15 William Lindsay (The) 370 — Lushiugton (The) ... 365 Money (The) 364 Willoock t^. Terrell 304 Williams, £■» parte 298 Lire 90,93,228 7re re Davies ... ... 195 ^ TJeDavies 396 • 7)1 « Thompson ... 205 ■». Bayley 102 ■ V, Germaine 12 ^'. Morris ... ... 164 i). Pott 145 t). Price 391 1?. Smith 6,32 ^u Sorrel 112 11. Thorp ... ... 314 r. Tryp 536 1!. Waring ... ... 11 Willis V. Bank of England 36, 37 Wilson u Cluer 110,124 V. Lloyd 102 V. Tooker V. Wilson 242 152 Wilson's CasQ 227 Wiltshear 1). Cottrell 171 Wiltshire Iron Co. v. Great Western Railway Co. .. . ... 375 Winchester (Bishop of) r. Mid- Hants Railway Co 335 Windham v. Wither ... ... Windus v. Lord Tredegar ... 87 Wing V. Tottenham and Hamp- stead Railway Co 335 Wingfield, Ex parte; In re Florence 189 Winstanley, 7n. re ... ... 184 Winter v. Lord Anson ... 330, 334 Wirth V. Austin 20 Withersheim v. Lady Carlisle ... 4 Withington I'. Tate 112 Witt,7re«j Ex parte Shxihrook 227,355 Wolfltr. Jay 102 Wood, Expurte; In re Newsham 214 V. Dwarris ... ... 80 V. Priestner ,... ... 107 V. Rowcliife 160 Woods;ate ». Godfrey ... 203,205 Woodhams v. The Anglo-Austra- lian and Pamily Assurance Co. 40 Woodhouse f. Murray ... ... 19fi Woodrop (The) ... 370 Wookey i>. Pole ... ... ... 7-2 Woolams v. Clapham 147 Woolridge I). Norris ... .. 105 TABLE OP CASES. Xll PAGE Wooistoiicroft ■!'. Woolstonci'oft 127 "Woosung (Cargo £«) 369 Worcester, /» « ... ... 309 Wordall i). Smith 167 Worley v. Harrison ... ... 56 Wormsley's E.state, In re ... 127 "VVorseley r. Earl of Scarborough 234 Worthington f. Curtis ... ... Si Worlley c. Birkhead ... 113,236 Wright, In re; Ex parte Arnold iy4 . — r. Hiclding ... ... 106 V. Midland Railway Co. 349 V. Monarch Investment Building Society ... 123 r. Morley 314 V. Redgrave ... ... 168 r. Wright ... 303,304 Wright's Mortgage Trust, In re 238 Wrigley, /ft re ... ... ... 193 Wyld «. Plckford 350 Wynn Hall Co., In n ... 225, 276, Wythe u Henniker 332 •!;. Lee ... ... ... 335 Xenos r. Wickham Y. Yaldcn, Ex parte; In re Austin 358 Yardley w. Holland 116 Yates «J. Humbly 124 Yeatman t-. Keed 228 Yeomans I). Williams ... ... 417 Yglesias, //!«; Ex parteG-omez 400, 401 Ex parte South American Co. 400, 402 V. River Plate Bank 9 York Banking Co. *. Artley 228, 472 Yorke I). Grenaugh ... ... 360 Young V. Grote r. Kitchen V. Lambert V. Lord Waterpark r. Young Zodiac (The) 21 311 242 134 113 3C6 TABLE OF STATUTES. 33 Hen. VIII. c. 39, S3. 3 13 Eliz. c. 5 ... 105, 109, 27Eliz. c. 4 29Eliz. c. 5 21 Jac. I. u. 16, s. 3 H. 7 29 Car. II. c. 3, s. 1 s. 2 s. 4 S.17 2 W. & M. 0. 5, =. 3 4 & 5 "W. & M. c. 16 5 & 6 W. & M. c. 20 W. III. 1 Pari. s. 5 (Sc.) 8 & 9W. III. c. 11,3. 8 9 & 10 W. III. c. 17 2 &3 Anne, kj. i ... =. 17 . 3 & 4 Anne, u. 8 ... 0. 9 ... 4 Anne, c. 16, a. 9 4 & 5 Anne, c. 16, ss. 12, 5 Anne, c. 18, s. 10 6 Anne, 0. 20 t;. 35, B. 27 s. 29 c. 2 (Ir.), s. 14 '.'. 7 Anne, o. 20, s. 16 s. 18 8 Anne, 0. 10, s. 3 0. 14, ss. 1-^3, C, 7Geo. II. u. 2 8 Geo. II. u. 6, s. 32 s. 34 9 Geo. II. c. 5 (Ir.) 11 Geo. II. c. 19, ss. 1, 2, s. 8 .. 25 Geo. II. u. 14 (fr.) .. P.VGE 7*51 ,52 108 171 188, 189 ... 232 ... 165 61, 382 ... 382 ... 142 ... ib. 'l04 224, 527 108, 527 ... 171 ... 130 ... 28 ... 34 62,63 ... 12 ... 238 ... 143 ... 271 3, 301 ... 125 is- ... 62 ... 112 ... 238 112, 238 ... 143 ... 143 112, 238 ... 143 ... 112 7 177, 178 535, 537 112, 238 ... 143 ... 306 V 177, 178 ... 171 ... 306 PAGE 5 Geo. III. c. 49, s. 2 ... ... 37 9 Geo. III. c. 16 ... 108 14 Geo. III. ... 4, ». 1 ... ... 82 B. 3 ... ib., 84 21 & 22 Geo. III. c. 16 (Ir.) ... 34 26Geo. III.C. 43 (Ir.) ... ... 250 28 Geo. III. c. 49 (Ir.) ... ... ib. 39 & 40 Geo. III. c. 42 ... ... 5, 9 48 Geo. III. 0. 47 ... 108 ^. 140, ss. 50, 69 250, 251 51 Geo. III. u. 64 ... 272 55 Geo. III. c. 184 56, 57 56 Geo. III. 0. 50, ss. 1, 3 ... 177 s. 6 ... ib., 171 1 & 2 Geo. IV. c. 72 ... ... 34 c. 78 ... 11 3 Geo. IV. u. 39, s. 8 ... 95,97,99 4Geo. IV. u. 83 ... 253,651 552, 562 =. 1 253 258, 261 s. 2 253, 258 s. 3 ... 253 Geo. IV. 0. 94 253, 553- -557, 562 s. 1 253 258, 261 s. 2 254, 255, 258— 260, 262 s. 3 ... 254 s. 4 ih., 255, 258—260 s. 5 254, 258-260 s. 6 ... 254 7 Geo. IV. u. 6, s. 3 ... 30 s. 4 ... 29 0. 46, s. 1 30,31 7 & 8 Geo. IV. 0. 18 ... S, 9 c. 27 ... ... 556 9 Geo. IV. 0. 14, s. 1 ... 382 Rs. 3. 4 ... 383 9 Geo. IV. c. 23, s. 1 ■ 29, 30 ». 15 ... ... 30 TABLIS OF STATUTES. xliii 9 Geo. IV. c. 24, s. 4 PAGE • ... 12 9-11 5, 9, 11 u. 53 556 c. SI 33,37 1 & 2 W. IV. u. 58, S.S. 1, 3 323, 324 3&4W. iV. u. 27 382 s. 3 144 s. 9 ... i6„ 145 ss. 16—18 133, 140, 141 s. 28 131, 132, 136, 139 s. 34 ... 139 s. 40 90, 132, 136, 139—141, 382 s. 42 135, 136, 138, 141, 423 u. 42, =. 3 61, 108, 131, 136, 138, 140, 382 s. 4 ... 140, 382 s. 5 01, 108, 131, 136, 138-140, 382 ss. 16, 18 ... 62 s. 28 39, .422, 423 s. 29 ... 423 c. 98, s. 2 ... 30,31 s. 6 29 i;. 99, ss. 32, 40 ... 108 u. 104 ... 130,227 c. 105, s. 2 ... 130 5&6W. IV. c. 62 433 6 &7W. IV. c. 32, s. 5 123 c. 8 432 7 W. IV. & 1 Vict. u. 28 131, 132, 130, 140, 141 1 & 2 Vict. c. 110, s. 11 ... 92 ss. 14, 15 ... 93 s. 17 ... 423 0. 145 99 3 & 4 Vict, c' 65, s. 6 '.. ... 365 c. 82, s. 1 93 i;. 96, s. 38 48, 51, 52, 56 i;. 110, ss. 9, 12, 14 432 4& 5 Vict. c. 35, s. 90 147 5 Vict. c. 5, ss. 4, 5, Sch. 1 ... 158 5 & 6 Vict. c. 39 ... 253, 258—260, 557—662 s. 3 255 s. 4 ii., 256,261, 262 s. 7 ... 266, 256 cfc 7 Viet. i;. 40, s. 18 179 c. 66 99 c. 91, s. 26 432 7 & 8 Vict. c. 32, ss. 1— 5 ... 28 PAGE 7 & 8 Vict. c. 32, ,s. 7 29 ss. 10, 11 ,,. 30 s. 12 ... ib., SI S.S. 13, 22 ... 31 5.26 37 L-. 86, s. 19 295 s. 21 296 c. 97, s. 67 177 c. 110, s. 26 ... 518 ss. 44—46 ... 77 8 & 9 Vict. c. 16 ... 269, 281 s. 528 S3. 14, 15 ... 502 ss. 18, 20 ... 240 s. 38 282 s. 42 285 ss. 45—47 ... 284 £S. 48-52 ... 285 s. 53 282,288,483 s. 64 ib. ». 61 ... 497, 502 ss. 62-64 ... 502 s. 85 336 ss. 120—123, Sch. B 502 Sch. G 283 Schs.D,E 284 I--. 37, d. 1 34 S9. 8, 12, 14 ... 33 s. 15 ;6, 34 s. 17 26 s. 19 33 s. 26 ib. i;. 38 ... ... ... 34 c. 106 ... 120, 142 c. 108, s. 18 ... 535—537 9 & 10 Vict. c. 95, s. 58 488 10 & 11 Vict. c. 16 ... 269, 292 ij. 47 ... 293 5. 75 292, 294 s. 76 ... 294 ss. 78—88 ... ib. s. 86 ... 483 Sch. B 293 Sch. C . 294 c. 96, ss. 1, 2 ... 325 11 & 12 Viet. c. 18 350 c. 42, ss. 23, 24 ... 108 u. 88, H. 2 51 s. 3 49 s. 4 51 ss. 6— 8 ... 52 12 & 13 Vict. 1-. 74 326 c. 106, s. 125 ... 308 13 & 14 Vict. c. 60, ss. 3, 20 ... 148 c. 61, s. 1 488 xllv TABLE OF STATUTES. li&15 Vict. 0. 25, ». 2.. ». 3 .. u. 99 15 & IG Vict, i;." 55, a. 2 '.'. u. 76 c. 86, s. 48 IG & 17 Vict. 17 & 18 Vict, u PAGE ... 177 173, 175 ... 218 ... 148 ... 469 111, 126, 478, 479, 481 s. 56 ... 479 e. 59, s. 19 21, 22, 42 c.l(i7, s. 60 ... 350 113, s. 20 ... 137 3i 159,219,205,5.50 r). 1. .2... 1.6... .7... 198, 204, 213, 216, 218 198, 204 ... 200 201, 202, 207, 213, 214 s. 15 ... 199 c. 55 ... 198, 219 c. 83, s. 11 ... 26 c. 90 ... ... 421 u. 104, ss. 18,37, 66J 67 ... 150 s. 68 112, 151 s. 69 153, 239 ss. 70— 72 153 P8. 73—75 151 s. 76 ... 154 Es. 77—80 154 ss. 170—181 372 s. 182 367, 372 s. 183 ... 372 ss. 188, 189 373 s. 243 ... 372 ss. 353, 356, 357, 360, 380, 381 374 s. 458 367, 368 s. 459 ... 368 ». 460 369, 370 ss. 466, 468, 476 ... 370 ss. 484—493 369 >■. 491 367, 369 ». 497 ... 367 ss. 503, 507, 508, 511, 512 „. 371 s. 5]9 373 ss. 527—529 487 . 113 ISC- 129, ?:U. 541, 542, 543 17 & 18 Vict. 0. 18 & 19 Vict. o. c. c. 19 & 20 Vict. u. C. c. 20 & 21 Vict. c. c. c. 21 & 22 Vict. u. 22 & 23 Vict. u. 23 & 24 Vict. c. c. 125 s. 87 15, s. 12 63, s. 37 67 s. 5 ...471, 472,488 1, 3, 4 6,7 111 25 47, s. 107 74, s. 184 97, s. 3... s. 5... ». 7... ». 9... B. 10 s. 16 108, s. 23 3,8.2 ... 60, s. 400 77 79, ... 35, ». 24 28 38,8.3 ... 23, PASE .. 469 30, 411 225 432 23. s. 12 126, s. 14 S3. 15, 18 24 Vict. 0. 98, s. 24 & 25 Vict. 0. .127, 145 . 12 10,8. . 25 . 28 .. 468 .. 469 .. 302 24, 541 .. 518 .. 432 .. 104 105, 408 ... 13 61, 382 131, 133 9 .. 488 .. 51 .. 432 .. 108 24, 541 .. 118 .. 535 .. 91 .. 118 .. 500 .. 323 .. 324 .. 62 , 43 . 62 .63, , 95 25 Vict. c. 23 25 & 26 Vict. c. c. 115, 358, 361, 362 Ill U— 19, 23,32... 121 29, 33 365 153, 365 367 373 153 107 468 108 3 153 560 . 75—77 ... 656 78 ib., 560 .. 556 29, 33 ., 468 .. 277 .. 367 s. 10 s. 11 ». 33 ss. 79—86 , 98, s. 12 53 03, s. 18 ss. 2n, 27, 28, ■ Tab. C. ... 370 TABLE OF STATUTES. xlv PAGE PAGE 25 & 2(3 Vict. 0. 63, s. 49 ... 369 29 & 30 Vict. c. 25, SS. 1,3— 5,12 66 s. 54 ... 371 ss. 6, 7, 9—11 67 s. 59 ... 307 ss. 12—14, 16 68 ss. 68—78 ... 350 S3. 26, 27 ... 70 c. 69 ... 240 c. 42 82 0. 89 '.'.'. 77, 268, 269 c. 96 ... 159,219, 550 =. 12 ... 503 s. 4 198 ss. 14, 15, 22, s.s. 5, 6 ... 199 23 ... 156 s. 7 ... ih., 216 ss. 2S, 29 ... 503 =. 8, Schs. A, B 199 s. 31 ... 156 ^. 99, s. 1 ... 488, 489 s. 35 ... 531 u. 108, ss. 3, 10, Sch. s. 38 ... 156 1 ... 287 ». 43 ... 276 s. 14, Sch. 2 288 =.47 ... 272 s. 15 ib., 289 ss. 79— 82,86, ss. 16, 17 ... 289 91 ... 483 30 Vict. c. 29 518 s. 87 lb., 484 30 & 31 Vict. c. 69 126,128,129,331, s. 98 ... 531 542, 543 s. 131 ... ia. ^. 127, ss. 4, 6—11 289 s. 151 ... 528 ss. 12—21 290 s. 163 ... 361 s. 23 ... 291 Sell. Tab. A. 156 ss. 24, 25... 286 26 & 27 Vict v;. 41 ... 353 c. 131,ss. 27— 32... 156 i;. 118 ... 269 =. 33 ib., 459 ss. 12—21 ... 502 SS.34 37 156 s. 22 282, 286 30 & 31 Vict i;. 142, ss. 5, 7—9 489 ss. 23, 24 ... 286 c. 144, ss. 1, 3, 4... 86 ss. 25, 26 ... 282, 287 s. 5 ... 87 s. 6 ... 86 !J. 27 ... 287 31 & 32 Vict. c. 4 64 ss. 28, 29 ... 286 c. 71, ss. 2, 3 488, 489 s,s. 31, 32 ... 287 s. 9 ... 489 s. 33 ... 286 c. 119, s. 3 ... 298 27 & 28 Vict c. 20 ... 33 32 & 33 Vict c. 46 61,90 u. 32 =. 1 ... ... 31 c. 48, s. 1 286 i;. 47 s. 2 ... ... 51 c. 51, =. 2... 488,489 c. 112 90, 108 u. 62 97 s. 1... ...91,92 ss. 24—26 ... 95 ss. 3, 4 ... 91 ss. 27, 23 ... 99 ». 6-... ...ib.,92 c. 71 304 s. 7... ... 92 s. 4 181 28 & 29 Vict c. 78, ss. 2, 3, 6- -11 277 S.6 ... 180,182, B. 13 ... 278 188, 189 B. 15 ... 280 s. 9 373 a. 17 ... 281 s. 11 ... 181 SS. 21—23 ... 278 s. 12 ... 397 B. 30 ... 279 S.15 88,181,184, ss. 31, 33, 35 280 185, 187—189, ss. 37, 38, Sch. 308 form E .. 281 s. 16 332, 396 ss. 41, 42 ... 484 f.. 17 ... 308 s. 43 ... 483 s. 30 ... 423 ts. 44—46 ... 484 s. 31 ... 194 c. 86 ... 423 s. 32 ... 61 c. 104 , S-. 31—52 ... 108 a. 40 ... 396 xlvi TABLE OF STATUTES. 32 & 33 Vict. 0. 71, s. 87 . I'AGE 195 305 s 90 ib. a. fll... 190,192, 304 s. 92 517 s. 94 37, J 94, 303 s. 95 197 s. 113 ... 432 s. 191 ... 373 IIR. 73—81, 99, 133 ... 396 KU. 100, 101 397 u. 104 500 33 Vict. 0. 10, s. 4 30 33 & 34 Vict. 0. 20 269 ss. 4. 6, 12 ... 278 ss. 15, 16 ... 279 Sch. (B) ... 280 u. 58 500 0. 61 78 c.71,ES. 22, 2?, 26— 32 ... 499 ss. 34, 35 ... 500 >;. 93, o. 10 ...82,83 c. 97 425 ss. 1— 6 ... 426 ss. 7—12 ... 430 ss. 13, 14 ,.. 4.31 ss. i5— 17 ... 427 ss. 18, 20 ... 431 S.-23 3,429 =.24 430 ss. 25, 26 ... 431 s. 36 ... 39, 429, 434 s. 4.5 ... 26, 31, 435 s. 46... 31,435 s. 47... J6., 435 B. 48 41, 56, 57, 326, 437 =.49 437 a. 50... 429,437 s. 51 3, 13, 427, 429, 437, 438 B. 52... 13,438 s. 53... 8,427,438 s. 54... a., 31, 67, 427, 438, 439 a. 56... 433,439 ». 67 198 s. 66 440 s. 67... *., 441 . ss. 68, 69 ... 441 B. 70 442 S3. 71, 72 ... 443 s. 73... «6., 444 r,. 74... 444,445 PAGE 33 & 34 Vict. 0. 97, s-. 75 .. ... 445 s. 73 .. ... 442 s. 87.. ... 443 s. 88 .. ... 400 s. 89 .. ... 446 s. 90 .. ... ib. s. 91 .. ib., 447 B. 92.. ... 460 s. 93 .. ... 447 s. 101 ... 449 ss. 102- -104... 450 s. 105 451, 452 s. 106 ... 452 ». 107 ib., 453 ss. 108 -111 453 ss. 112, 115... 454 s. 116 12, 429, 450 ss. 117, 118... 455 s. 119 429, 456 s. 120 ... 457 s. 121 429, 457 ss. 122, 123... 458 s. 127 ... 459 Sch. 29, 33, 39, 432—460 c. 98 ... 425 c. 99 ... ib. c. 104 .:. 484 34 Vict. c. 4 ;.. 426 ss. 2, 3 ... 454 s. 5 450, 451 0.17 ... 6,9 34 & 35 Vict. c. 62 ... 70 i;. 58 ... 78 ^. 74 4 0. 97 ... 179 35 & 30 Vict. c. 41 ... 78 c. 44 325, 436 c. 67 ... 95 c. 73, s. 9 ... ... 374 c. 93, SB. 5, 6 245, 246 o. 10 245, 249 ss. 12—15 ... 246 ss. 17—19 ... 249 ss. 21—23 ... 250 s. 24 245, 249 6S. 25, 26 ... 246 SB. 27—31 ... 247 ss. 32—36 ... 248 ss. 37—44 ... 246 ss. 56, 57, .Sch. 1 ... 245 Sch. 2 ... 246 Sch. 3 ... 249 Sch. 4 ib., 250 Sch. 5 ... 250 TABLE OF STATUTES. xlvii PAGE TAGE 36 & 37 Vict . c. 66 222 38 & 39 Vict. c. 77, 0. II., i: la 487 ES. 3—6 ... 462 O.IlI.,r. 6 463,464, ss. 16, 17 ... 302 471, 672 s. 25, sub s. r. 7 ... 464 2 134 0. V.,r. 11... 487 5... 110,122 0. IX.,rr.lOa 6 265, 302, 311, —12 ... ih. 316, 412 "0. XII. ... 462 9 370 0. XIII. ... ib. 11 ... 62, 105, 411 rr. 2—4 464 ss. 29, 31, 33 462 0. XIV. rr. s. 34 319, 462, 472, la- 6 ... 465 478, 481, 486 0. XVI., 1.7 476 s. 49 ... 100 0.XVn.,r.2 473 s. 87 95, 99 0. XlX.r. IS 382 Es. 89—91 303, 411 0. XXI. ... 462 0.75 33 r. 3 487 0. 85, s. 17 ... 371 r. 4 466 37 & 38 Vict u. 42, s. 41 ... 432 0. XXII. ... 462 =. 42 ... 123 r. 3 466, 467 c. 52, ». 1 ... 371 0. XXIV. ... 462 c. 67, ss. 2—9 90, 131, O. XXV. ... ib. 140, 141, 0. XXVIII. ib. 145, 382 0. XXXV. 471 s. 10 ... 134 0. XXXVI., u. 62 64 rr. 3, 26—29 462 c. 78, s. 1 ... 120 O.XLII.,r.l8 93 s. 4 ... 123 r.l9j6.,97 s. 7 ... 113 r. 20 100 38 & 39 Vict. c. 45 66 0. XLV. ... 93 s. 2 67 0. XLVI. ... ib. c. 50, s. 1 ... 488 r. 2 158 O.IV.,rr.l,5 488 0. LI. ... 462 O. VII., !■. 1 ib. 0. LIL, r. 6 462 0. VIII., rr. 0. LIV. ... 466 27—29, 33 ib. 1. 2 100 O.XVin.,r.3 ib. O.LVIIL.rr. 0. XXXVIII., 9,15 ... 467 rr. 47—49 ib. Apps. 473, 487 Forms 15, e. 83 269 16, 18, 19 ib. u. 87 120, 143, 238 „. 60, E. 16 .... 123 ss. 7— 9, IS- s. 15, subs. 2 432 IS ... 239 c. 66 !52 s. 27 ... 480 c. 92 173 ss. 28, 49, 53,54 239 s. 63 174, 175 s. 68 ... 480 ss. 54—58 174 ». 81 ... 224 c. 77 222 s. 123 ... 277 s. 10 45, 91, 196 s. 129 ... 173 s. 11 ... 462 G. K. 20 ... 480 ». 18 ... 364 39 Vict. 0.1 70 s. 21 ... 462 39 & 40 Vict. c. 37 108 O. I., ... ib. c. 81 ... 539—541 r. 2 323, 324 ss. 2, 3 ... 58 0. II. ... 462 ss. 4—6 .. 23 X. 6 ... 568 ss, 7, 10 ... 25 xlviii TABLE OF STATUTES. PAGE PAGE E9 & 10 Vict. c. 81, B. 12 i6., 23 41 & 42 Vict.c. 31 s. 5... 210, 213 Sell ... 25 B. fi ... ... 205 lOVict. c. 2 C6, 70 B. 7... 209, 210 s. 3 ... 70 s. 8 ... 198,215,222 EB. 4—8, 12 71 B. 9... ... 222 40 & 41 Vict. u. 3i 126 128,331,543 s. 10 198, 199, c. 39 253, 256, 258, 259, 562, 563 204, 205, 218,219, s. 1 .. ... 250 221 s. 2. 257, 261 B. 12 198, 199, F. 3.. ... ib. 219 B. 4. ... ib. e. 14 ... 222 ». 5. ... 258 s. 15 ... 200 s. C . .. 256 s. 17 ... 219 c. 51 ... 72 s. 21 ... 222 41 Vict. c. 13 ... 9 s. 22 ... ib. 41 & 42 Vict. c. 31 . 130, 159, =. 23 ... 203 544—550 s. 24 ... 198 =. 2. 198, 200 Sell. A .. 199 =. 3.. ib., 204 Seh. B .. ib. s. 1 .. .200,201,204, i05, 210 c. 38 334 THE LAW OF MONEY SECURITIES. BOOK I. PEESOliTAL SECUEITIES OE SECURITIES ON CREDIT. CHAPTER I. I U. An I U is the simplest of all valuable securities. It is a mere acknowledgment in writing of a debt due from one person to another, and is in the following form : — London, 1st January, 1879. A. B. I U £100. C. D. The creditor (A. B.) should be addressed as above, but an omission of his name will not vitiate the document if produced in evidence (a). No promise of payment or other addition should be made, as the character of the instrument might be thereby changed and become void for want of a stamp (6). An {a) Curtis v. Eiokards, 1 M. & Gr. 46. Melauotte v. Teasdale, 13 M. & W. (6) Brooks v. Jllkins, 2 M. & W. 74 ; 216. ■0 B 2 PERSONAL SECURITIES OR SECURITIES ON CREDIT. I U does not alter the relation between debtor and creditor further than to show an account is stated between them, and is not evidence of money lent (c) ; it is only primd facie evidence of the existence of a debt, and as such may be rebutted (d). It is not a negotiable instrument in the sense that it may be indorsed over to a succession of persons; but the chose in action of which it is proof may now be assigned by the creditor, and the assignee may sue for the debt in his own name, and use the I O U in evidence (see Assignments) (e). The mere giving of an I TJ, like the acceptance of a bill of exchange, does not preclude the defendant from showing there was no considera- tion (/). (c) Feaemnayer v. Adcock, 16 M. & (e) Post, chap. xxix. W. 449 ; Buck v. Hurst and Bailey, L. (/) Hinton v. Sparkes, L. R. 3 C. P. K. 1 C. P. 297. 161. (d) In re Farrow, 22 Beav. 400. CHAPTER II. PROMISSORY NOTES. A PROMISSORY note or note of hand is an unconditional promise in writing undertaking that the person or persons making and signing the promise (the maker or makers) shaU pay to the person or persons to whom the promise is made (a.) ("the payee or payees), or to his or their order, or to bearer, a given sum of money (6), at a time certain (c), and is in the following form : — London, 1st January, 1879. £100. On demand (or at sight, or at days after sight or date), I (or we) promise to pay John Smith (or John Smith or order, or bearer) one hundred pounds. Thomas Brown (or Brown & Co.). A promissory note must bear a stamp before it is issued or transferred, such stamp to be impressed if the note be inland (d). The undertaking must always be absolute — that is, payment must not depend upon any uncertain event or contingency (e). Like every simple contract, a promissory note must be supported by a valuable consideration, but in the case of a promissory note the law presumes such consideration until the contrary (a) Holmes v. Jaques, L. R. 1 Q. B. & 0. 360. 376. (d) 33 & 34 Vict. c. 97, ss. 23, 51, (6) Smith V. Nightingale, 2 Stark. see post, chap, xxxiii. 375 ; Ayrey v. Feamsides, i M. &. W. (c) Kingston v. Long, 4 Doug. 9 ; 168 ; 3 & 4 Ann. o. 9. Colehan v. Cooke, Willes 394 ; Clarke (c) 3 & 4 Ann. o. 9 ; Goss v. Nelson, v. Perceval, 2 B, & Ad. 660. 1 Burr. 226 ; Clayton v. Gosling, 5 B. B2 4 PERSONAL SECURITIES OR SECURITIES OK CREDIT. be sliown (/), and, against a bond fide holder for value, no defence founded on want of consideration can avail {g). Thus, if A. -without receiving any valuable consideration give B. a promissory note, B. cannot recover in an action to -which A. pleads -want of consideration Qi), though in the absence of such plea B. would be entitled to succeed without proof that there had been a consideration (%); and if the note were negotiable and londfide discounted by C, he could recover against A. (k). Promissory notes are either inland or foreign ; at present we deal only with the former, which for practical purposes may be divided into tliree classes : — 1. Notes payable to a certain person. 2. Notes payable to a certain person or his order. 3. Notes payable to bearer. Of these in order : — 1. When a promissory note is made payable to a certain per- son (l), no one but that person or his representatives can sue the maker (m). A mere transferee by delivery with (n), or without (o), indorsement cannot recover, except such transfer amounts to an assignment of the chose in action in the manner hereafter mentioned (p). If the note is payable on demand or at sight(g'), the maker is bound to pay immediately on presentment ; if so many days after sight or after date, he will not be bound to pay till after the lapse of such days and three more days, called days of grace (r), to be computed exclusive of the day on which the note falls due and inclusive of the last day of grace (s). When the last day of grace is Sunday (t), Christmas Day, Good Friday, or a day of public fast or thanksgiving, the instrument (/) Mills V. Barber, 1 M. & W. 425 ; 249. Fitch V. Jones, 5 El. & B. C. 238. (o) Byles onBiUs of Exchange, 12th {g) Masters v. Ibberson, 8 C. B, 100. ed. 147. (h) Chitty on Contracts, 10th ed, 17. (p) Post, chap, xxix; Brice «. Ban- (i) Holliday v. Atkinson, 5 B. & C. nister, L. K. 3 Q. B. D. 569, 580. 500, 501. iq) 34 & 35 Vict. e. 74 ; Chartered (h) Chitty on Contracts, supra ; Ho- Bank of India, &c. v. Dickson, L. B. 8 garth V. Latham, L. E. 3 Q. B. 643. P. C. 574. (I) See post, p. 5. (r) Coleman v. Sayer, 2 Stra. 829. (m) Holmes v. Jaqnes, L. E. 1 Q. B. (s) Withersheim v. Lady Carlisle, I 376. Hyde v. Skinner, 2 P. Wms. 196 ; H. Bl. 631. Murray v. East India Co., 5 B. & Aid. ■ (t) Tassell v. Lewis, 1 Lord Raym. 204. 743; Haynes v. Birkes, 3 B. & B. (n) Plimley v. Westley, 2 Bing. N. C. 599.- PEOMISSOEY NOTES. 5 is payable on the day before (u) ; a note due and payable on a bank holiday becomes payable on the following day, with rela- tion to which, notice of dishonour, presentment, and transmission by post or otherwise must be made or given (x). 2. When a note is made payable to a certain person or his order, the maker is liable to the persons before mentioned and also to a transferee after indorsement by the payee (y). The payee may simply write his name on the back of the note, or he may, in addition, direct payment to some given person or his order ; if the payee simply writes his name, he is said to indorse in blank; if he directs payment to some given person, he is said to indorse specially or in fuU. By indorsement in blank the note becomes payable to bearer (z), but any holder may, if he chooses, make a special indorsement and so restrict the negotia- bility of the instrument (a). By indorsement in full, which is in this form — " Pay Mr. John Smith or order. Thomas Brown " (name of payee) — the note becomes payable to the indorsee and must be indorsed by him to pass to a subsequent holder — such indorsement may be in blank or in full, and will be attended with respective consequences as above stated (6). The negotia- bility of a note originally made payable to a person or his order cannot be absolutely restricted by indorsement ; it can only be partially modified. Thus, if the payee or any holder after his indorsement should specially indorse to a given person without adding, " or his order," such special indorsee will stiU. be able to transfer the instrument by indorsement, as the power conferred on the payee is held to extend to every subsequent indorsee xor holder (c). An indorsement as here spoken of consists, not merely of a written indorsement, but includes also a delivery of the indorsed instrument with the intention of transferring the property therein (d). («) 39 & 40 Geo. III. c. 42 ; 7 & 8 (a) Walker v. M'Donald, 2 Ex. 527. Geo. IV. u. 18 ; 9 Geo. IV. <^. 24, sa. (6) Moore «. Manning, Com. Hep. 311. 9 11. (c) Gay v. Lauder, 6 C. B. 336. {xj '34 Vict. c. 17. {d) Arnold v. City Bank, L. R. 1 C. iy) Gibson v. Minet, 1 H. Bl. 605 ; P. D. 578 ; Ciiartered Mercantile Bank CaUow •«. Laurence, 3 M. & S. 98. of India Co. v. Dickson, L. K. 3 P. C. (2) Peacock T. Ehodes, Doug. 611. 574; Greent).Carhill,L.K.4 Ch. D. 882. 6 PERSONAL SECURITIES OR SECURITIES ON CREDIT. Any person wlft) puts his name to a note with the intention of passing the same by the indorsement (e), may, on its dis- honour, be sued by any subsequent holder, unless the indorse- ment repudiates liability, as where the words " sans reCdurs," or " without recourse to me," are added to the name bf the in- dorser (/); or unless the indorser sighs in a representative character (g), which is so described (li), or unless the indorse- ment was obtained by fraud (i). In order, however, to make an indorser liable, the note must on its maturity be duly presented for payment to the maker, and notice of the dishonour must be given within a reasonable time to the party whom it is sought to charge (A). What is a due presentment will depend on the circumstances of each particular case, and is a question for a jury to determine ; the holder is only bound to use reasonable diligence as estimated by the particular case in question (I). By notice within a reasonable time is meant notice on the day of, or the day following, the dishonour, if holder and indorser live in the same town (771) ; or, if they live in different towns, notice by letter posted on the day of {n), or oh the day fol- lowing (0), the dishonour. Any indorser, who has received such notice, may, on giving a similar notice to any prior indorser, make the latter liable to him, and such latter may by notice in the same way make a still prior indorser liable to him, and so on (p) ; but this rule only applies as between independent parties to the instrument, not as between a holder and his agent {q). A substantial satisfaction of the debt by any one party wiU discharge all subsequent parties (r). (e) Denton v. Peters, L. R. 5 Q. B. 475. (?) Chartered Mercantile Bank of (/) Goupy V. Harden, 7 Taunt. 160, India, &c. «. Dickson, L. E. 3 P. C. 574. 161 ; Leadbitter v. Farrow, 5 M. & S. (») Eowe v. Tipper, 13 C. B. 249. 345, 349. (n) Burbidge v. Manners, 3 Camp. (g) Alexander v. Sizer, L. E. 4 Ex. 193 ;' Ex pa/rte Moline, 19 Ves. 216. 102. (o) WiUiama v. Smith, 2 B. A. 496 ; (A) Dutton V. Marsh, L. E. 6 Q. B. Scott v. Tifford, 9 East, 347. 361. (j5) Home v. Eouquette, L. E. 3 Q. {i) Foster v. Mackinnon, L. E. 4 C. B. D. 516, 517 ; Geill v. Jeremy, Moo. P- 704. & M. 68. (4) In re East of England Banking (q) In re Leeds Banking Co. ; Ex Co., L. R. 4 Oh. 15 ; Buckley v. Jack- pa/rte Prange, L. R. 1 Eq. 1. son, L. E. 3 Ex. 153. (r) Windham v. Wither, 1 Stra. 515. PROMISSORY NOTES. 7 3. When a note is made payable to bearer, or being originally- payable to a given person or order, is indorsed in blank by the payee, it is transferable by mere delivery without other for- mality (s). Any holder may sue the maker, but no previous holder is liable either on the instrument or on the consideration unless he indorses his name (t). (s) Peacock v. Rhodes, Doug. 612. 133 ; Rogers v, Langford, 6 B. & C, it) Gumey v. Womersley, 4 E. & B. 373. CHAPTER III. BILLS OF EXCHANGE. A BILL of exchange is an unconditional order or request in writing from some specified person or persons (the drawer or drawers) calling on a person or persons named (the drawee or drawees) to pay to some other person or persons named (the payee or payees), or to his or to their order, or to bearer, a given sum of money at a time certain, and is in the following form (a) : — £100. London, 1st January, 1879. On demand (or at sight, or at days after sight or after date), pay John Smith, Esq. (or Smith & Co., or John Smith Esq., or order, or bearer, or to my order), one hundred pounds. To William Jones, Esq. (or Messrs. -v _,, „ T p /-( N T 1 J cjj. J. ( Thomas Brown, or Jones & Co.), Lombard Street, >-- ^ ^ ' „ T ■ I Messrs. Brown & Co. London. J Except in the case of a bill payable on demand liable only to the duty of one penny, every inland bill of exchange must bear an impressed stamp before it is issued or transferred (6). Before a bill of exchange (not payable on demand) falls due, the payee or holder should present it to the drawee to ascertain if he will honour it at muturity ; if he undertakes to do so, he is said to accept the bill, his undertaking is called an acceptance and he is thenceforth called the acceptor. Every acceptance must be in writing on the bill, or, if there be more than one (a) That intention of the parties may K. 3 App. Cas. 133, P. C. convert into bills what are strictly pro- (6) 33 & 34 Vict. o. 97, ss. 53, 5i, missory notes, see Willans v. Ayers, L. post, chap, xxxiii. BILLS OF EXCHANGE. "9 part of the bill, on one of the said parts, and signed by the acceptor or some person duly authorized by him, otherwise it cannot be the 'subject of an action (c). It was very recently held that since the 19 & 20 Vict., it was not sufficient for the drawee merely to write his name across the face of the biU, but that for a valid acceptance there must also be on the face of the bill some word or words indicating an intention on the part of the drawee to be bound by it as acceptor (d). It is, however, now enacted that the signature of the drawee alone shall con- stitute a valid acceptance, except as to any verdict or judgment recovered or given before the passing of the new Act (e). The person primarily liable on a bUl of exchange is the acceptor, who, however, is only liable from acceptance (/) ; and, even then, is not estopped from challenging the character of the drawer (g). The latter and the indorsers (if any) are liable as sureties on the acceptor's default (h) : and that in the order in which they stand on the biU (i). The observations above made as to unconditional payment (k) and valuable consideration (I), apply also to bills of exchange, which are likewise either inland (of which we for the present treat), or foreign, and admit of a similar threefold division (m), with the same practical consequences as to the necessity for and effect of indorsement (n), and as to days of grace and bank holi- days, with relation to which also protest in the case of bills must be made (o). If the bill be dishonoured, the holder, or an indorser who has paid the amount, may, on due notice thereof, the instrument having been previously duly presented, call upon the drawer as well as any prior indorser (p), to pay the amount (c) 19 & 20 Vict. c. 97, ». 16. pot v. Bryant, 4 Bing. 720. {d) Hindhaugh v. Blakey, L. E. 3 C. (i) Dingwall v. Dunster, Doug. 249. P. D. 136. (*) Ante, p. 3 ; Home v. Bouquett^ (e) 41 Vict. c. 13. L. R. 3 Q. B. D. 514. (/) Heylin«. Adamson, 2 Burr. 674; (0 Ante, pp. 3, 4. Frith V. Forbes, 31 L. J. Ch. 793 ; (m) Ante, p. 4. Yglesias v. River Plate Bank, L. R. 3 (n) Ante, p. 5. C. P. D. 60, 33a. (o) Ante, pp. 4, 5 ; 39 &40 Geo. III., o. (o) Garland v. Jacomb, L. R 8 Ex. 42; 7 & 8 Geo. IV. c. 18 ; 9 Geo. IV. 216. 'i.24, SB. 9—11 ; 34 Viot. c. 17. (A) Smith V. Knox, 3 Esp. 47 ; Phil- (p) Fosterj).Parker,L.R.2C.P.D.18. 10 PEBSONAL SECURITIES OR SECURITIES ON CREDIT, due on the security (q). In case an indorser pays the transferee the amount of a hill or note, he is said to " retire " the instru- ment which he then holds with all his remedies intact ; but, if an acceptor or maker retires or pays at maturity, all the remedies are extinguished (r) ; the liability of the transferor of a bill is to be measured by that of the acceptor whose surety he is (s). Due presentment of bills is of two kinds : 1. Presentment for acceptance. 2. Presentment for payment. In the case of a bill payable on demand, there is no present- ment except for payment, and that presentment should be made within the next day after the payee has received the bill, or the bill should be sent by post within that time to be presented, according as the parties live in the same or different towns (t) ; but the above times for due presentment will be extended by putting the instrument into immediate circulation (u). If the bill be not payable on demand or at sight, it ought to be presented for acceptance within a reasonable time, as to which there is no absolute rule, but such presentment is not abso- lutely necessary except in the case of bills made payable a certain time after sight («), or after demand, and the time^will be extended by immediate circulation of the instrument (y). Due presentment for payment of a bill not payable on demand is made by presentment on the third day after the bill falls due, (i. e., the last day of grace) (z), and in the manner prescribed by the acceptance (a). An acceptance may be general or special ; 1st, the drawee may simply undertake to honour the bill; or iq) Whitehead v. Walker, 9 M. & W. (a-) Which means after acceptance or ;516. protest for non-acceptance, Byles 80, (r) Elsam v. Denny, 15 C. E. 87. 12th ed. (s) Kouquette v. Overmann, L. E. (y) The Bank of Van Diemen's Land 10 Q. B. 525. V. The Bank of Victoria, L. K. 3 P. C. («) Moore v. Warren, 1 Stra. 415; 526. Bylea on Bills of Exchange, 210, 12th (z) Ante, p. 4. ed- • («) Muilmau v. D'Egtiino, ubi smra ; (u) Shute V. Bobbins, M. & W. 133. Radikissen v. Malliok 9 Moore P C Muilman v. D^Eguino, 2 H. BL 565. 67, ' ' " ' BILLS OF EXCHANaB. 11 2iid, he may undertake to honour it at a particular banker's or other place; or 3rd, to honour it at a particular banker's or other place " only, and not otherwise or elsewhere." In the first case, which is a general acceptance, presentment must be made to the acceptor himself or at his residence ; in the second case, pre- sentment may be made either to the acceptor himself or at the particular banker's or other place ; in the third case, present- ment must be made at the particular banker's or other place (b) ; the second and third are special acceptances. We may here observe there is no privity between the drawer and the banker at whose house the acceptor undertakes to honour the bill, so that the drawer cannot maintain an action against a bank into which the acceptor pays funds to meet the acceptance when the bank dishonours the bill (c). The 1 & 2 Geo. IV. does not extend to promissory notes ; they must be presented at the parti- cular banker's or other place named for payment, if such place be inserted in the body of the note (d), but not otherwise (e). Due notice of dishonour of a bill is given by notice to any party sought to be charged in the same manner, and within the same time after presentment as that above stated in the case of promissory notes (/) ; and that whether the dishonour occur on presentment for acceptance or for payment (g). Sometimes a biU is drawn, accepted or indorsed for accommo- dation, that is, a person puts his name to a biU without receiving consideration, in order to enable the party accommodated to raise money, and on the understanding that the latter wiU pro- vide funds when the debt falls due. In such case, on due presentment and dishonour, no notice need ever be given to the party accommodated to make him liable either by a holder or an indorser (h) ; and, where it is the intention of all the parties to (6) 1 & 2 Geo. IV. 0. 78 ; 9 Geo. IV. (g) Blessard v. Hurst, 5 Burr, 2, 672; u. 24 ; Halstead v. Skelton, 5 Q. B. 93. Eosoon v. Hardy, 12 Bast, 434 ; Smith (c) HiU V. Koyds, L. B. 8 Eq. 290. v. Mercer, L. B. 3 Ex. 51. {d) Sands v. Clarke, 8 0. B. 751. (h) Biokerdike v. Bollman, 1 M. & G. le) Williams v. Waring, 10 B. & 753 ; Ex pa/rte Baker ; In re Bellman, C. 2. ^- K. 4 Oh. D. 795 ; Gladwell v. Turner, ( f) Ante, p. 6 : Home v. Bouquette, L. B. 5 Ex. 59 ; Berridge v. Fitzgerald, L. B. 3 Q. B. B. 514. L. E. 4 Q. B. 639. 12 PERSONAL SECURITIES OE SECURITIES ON CREDIT. the bill that it should be met by the last indorser, previous indorsers caimot be sued unless they have had notice of dis- honour (i). A bill that is dishonoured may be protested ; but, if inland, only when drawn for a sum of £5 or upwards at a certain time after date, and when dishonoured on due presentation for pay- ment upon a written acceptance (k). The protest consists in a formal statement of the dishonour, and is made by a solemn declaration written by a notary under a copy of the bill, stating that payment or acceptance has been demanded and refused, the reason, if any, assigned, and that the bill is therefore protested (I). As a step preparatory to protest, a bUl may be noted by a notary aflixinghis initials, the month, day, and year, and his charges, at the time of refusal to accept or pay (m). In the case of an inland bill the protest should be made on the day following the dishonour (n), and must be stamped with the same duty as the bill or with a duty of one shilling, according as the duty on the bill does or does not exceed one shilling (o). When a bill is protested for non-acceptance, any one may accept it, supra protest, for the honour of the drawer or any other party liable ; by such an acceptance the acceptor engages on certain conditions to pay the bill at maturity (p). An accept- ance supra protest is made by the intending acceptor appearing personally with witnesses before a notary public, and declaring that he accepts supra protest, and that he will duly satisfy the same, and then subscribing the bill with his own hand thus — " Accepted supra protest, in honour of X. Y.," or "Accepts, S. P." (q). The holder of a dishonoured bill accepted supra protest must present it at maturity to the drawee for payment ; and, if the (i) Turner v. Samson, L. K. 2 Q. B. c. 24, b. 4. D. 23. See further Harris v. Sterling, (l) Ibid. I. B. 9 C. L. 198 ; Torrance v. British (m) Leftley v. Mills, 4 T. E. 175. Bank of North America, L. K. 5 P. 0. (w) 9 & 10 W. III. c. 17. 246 ; Bank of Ireland v. Dunne, 2 L. (o) 33 & 34 Vict. c. 97, s. 116 : sch. K. Jr. 2 ; Hood v. Stallybrass Balmer (p) Williams v. Gennaine, 7 B. & C. & Co. L. R. 3 App: Cas. 880. 477. (i) 9 & 10 W. III. 0. 17 ; 9 Geo. IV. {q) Beawes, pi. 38. BILLS OF EXCHANGE, 13 latter continues to dishonour, the holder must protest a second time for non-payment, he may then present for payment to the acceptor for honour (r). A party paying supra protest, provided the protest were made before payment, may sue the party for whom payment was made, and all other parties that party and the party from whom he receives the bill could have fallen back upon (s). An acceptor supra protest discharges all the parties subsequent to the one for whose honour he took up the bill, and he cannot indorse the bill over {t) ; an acceptance for honour of a forged bill binds the acceptor (u). Under the law as it now exists an inland bill or note is a bill drawn and payable within the limits of the British isles (x) ; all other are foreign bills or notes, though, for the purposes of the Stamp Act, only such bills or notes as are, or purport to be, made out of the United Kingdom are to be deemed foreign {y), and though every bill or note is primd facie pre- sumed to be inland until the contrary appear (z). Foreign differ from inland bills in the following particu- lars : — 1. The former usually circulate in several sets or counter- parts, each of which is numbered and refers to the others, and is conditioned to be payable only so long as none of them are paid. 2. If not made payable at so many months or days after date or sight, they are usually drawn at one or more usances or periods for payment customary between the countries or places where the bill is drawn and made payable (a). 3. On the dishonour of a foreign bill, whether by non-accept- ance or non-payment, it is not sufficient to give notice to a party sought to be charged, but, further, the instrument must be duly protested (b). (r) Hoare v. Cazenove, 16 East, 391 ; [y) 33 & 34 Viot. 97, sa. 51, 52. Williams v. Grermaine, ubi swpra. (z) Armani v. Castrique, 13 M. & W. (s) VaudervaU v. TyrreU, 1 M. & W. 443. 87. (a) Eor table of usances between {t) Ex pwrte Swan, L. E. 6 Eq. 344. different countries, see Chitty on Bills (m) Phillips V. im Thurn, L. E. 1 0. of Exchange, 260—363 n, 11th ed. P. 463. (6) Gale v. Walsh, 5 T. E. 239. {x) 19 & 20 Vict. c. 97, A 7. 14 PERSONAL SECURITIES OR SECURITIES ON CREDIT. 4. A foreign bill is partly governed by foreign, partly by English, law. The following is an example of a foreign bill : Londres, le 29 Octobre, 1847. Pour fcs. 19,478-05 A cinq jours de date payez par cette premiere de charge, la 2nde et la Sme ne I'^tant k I'ordre de Messieurs Poirier, Freres, la somme de dix neuf mille quatre cent soixante dix huit francs, cinq centimes, valeur de Messieurs Coates & Co., que passerez suivant I'avis de Morris, Prevbst & Co. A. M. Are Dassier, Paris. The bill is drawn by Morris & Co., of London, on A. Das- sier, of Paris, in favour of Messrs. Poirier. (c). Regular payment and cancellation of any one set of a bill circulating in sets, extinguishes all. A transferor is bound to hand over all the parts of a bill in his possession to a transferee ; and as between bond fide holders for value of different parts, he who first obtained his part is first entitled to payment (d). The (^awee should accept only one of the sets of a bill ; otherwise he may become liable to pay all the sets he has accepted by the same getting into separate hands (e). And, if he pay a set with a forged indorsement, he is liable to pay the real owner of another set (/). Whatever be the usance, that period must be extended by the days of grace (if any) which are allowed by the custom of the place where the bill is payable (g). Protest in this country is made in the form before described {h), and should be begun on the day the dishonour takes place (i) ; elsewhere, according to the country in which it is made, it must take place within the time and in the manner prescribed by the law of the (c) Poirier v. Morris, 2 El. & Bl. 89. 525. (d) Byles on Bills of Exchange, 390, {g) Chitty on Bills of Exchange, 263, 391, 12th ed. 264, 11th ed. For table of days of (e) Holds worth v. Hunter, 10 B. & C. grace in various countries, see ibid, 449. 266, 269(«.). (/) Cheap V. Harley, 3 T. R. 127; (7t) Ante, p. 12. Baxendale v. Bennett, L. E. 3 Q. B. D. ( j) 6 B. N. P. 272. BILLS OF EXCHANGE. 15 place where tlie bill is payable (k). To avoid the necessity of protest or expense, a drawer may subscribe the words " retour sans prot^t" or " sans frais;" the effect of which is to render him- self liable without protest by a holder (I). The drawer in a foreign country of a bill accepted in England, is entitled upon dishonour and protest to recover from the acceptor the amoimt of the bill, interest, and all reasonable expenses caused by the dishonour, including the expenses of re-exchange (m). The right to re- exchange in the absence of express agreement arises when the holder of a bill who has contracted for the transfer of funds from one country to another has sustained damage by its dishonour from having to obtaiu funds in the country where the bill was payable; re-exchange is the measure of those damages (n). A bUl drawn by the holder for the amount of a dishonoured bill on th£ drawer or indorser thereof for the amount due thereon and:f e-exchange, is called a " retraite " (o). The extent to which a foreign bill is governed by foreign and English law, respectively, is determined by general rules which apply to all foreign contracts, and bj' special rules derived from the peculiar nature of the biU. in question. There are two general rules : 1. That the mutual rights and obligations of the parties to a contract are determined by the lex loci contractus or law of the place where the contract was made ( p), or if made in one country to be performed in another, according to the law of the latter {g). 2. That the mode of enforcing those rights and obligations is determined by the lex fori or place where the contract is sought to be put into effect by action or other judicial process (r). Thus, suppose A. bring an action in England against B, on a guarantee entered into abrqad seven years ago ; (k) Kouquette v. Overmann, L. K. 564. 10 Q. B. (p) Trimbey v. Vignier, 1 Bing. N. 0. (I) Chittyon Bills of Exchange, 120, 151 ; Fergusson v. Fyffe, 8 01. & P. 121, 11th ed. 121, 140. (m) In re General South American (g) Robinson v. Bland, 1 Bl. 256, Co., L. E. 7 Ch. D. 637. 259 ; Koquette u. Overmann, L. E. 10 (n) WiUans v. Ayers, L. E. 3 App. Q. B. 525. Cas. P. 0. ^ (r) Dow v. Lippman, 5 01. & F. 1 ; (o) Suse V. Pomp, 8 C. B. N. S. 638, Story, Conflict of Laws, S. 556, 16 PERSONAL SECURITIES OR SECURITIES ON CREDIT. the effect and construction of the guarantee would, be according to the law abroad, but our Courts would admit a defence under the Statute of Limitations, as that is a mere matter of procedure (s). Precisely a similar result would follow in the case of a purely foreign bill, that is, a biU drawn, accepted, indorsed, and pay- able in some place abroad. On the dishonour of such a bill, the right to recover in an action brought in an English Court against the drawer, acceptor, or indorsee would depend on the foreign law, though any defence founded on our procedure would well avaU (t). It is, however, only in such an instance that foreign bills are simply governed by the two general rules above mentioned, for where a bUl is drawn in one country and accepted, indorsed, or made payable in another, the individual attributes of the instrument must also be taken into account. Let a bill be drawn in France, accepted in Germany, indorsed in Russia, and made payable in England, then the primary liability of drawer (u) will be determined by French law, of acceptor («) by German law, and of indorsee (y) by Russian law — that is to, say, those several laws determine whether the respective parties can incur any liability whatever, so that if the drawing of the bill be not valid according to French law, or the acceptance according to German law, or the indorsement according to Russian law, the drawer, acceptor, or indorser, wUl be exonerated from all liability. But it is only the primary liability of the parties that is thus determined by the lex loci contractus. As regards due presentment and payment or dis- charge, notice of dishonour and protest, these depend on the lex loci solutionis or law of the place where the acceptor under- takes to perform his p^rt of the contract. Thus, in the above example presentment to and payment by the acceptor (z), or notice («) The BritiBh Linen Co. v. Drum- (x) Burrows v. Jemimo, 2 Stra. 733. mond, 10 B. & C. 903 ; Huber v. {y) Trimbey v. Vignler, 1 Bing. N. C. Steiner, 2 Bing. N. C. 202. 151 ; Home v. Eouquette, L. K. 3 Q. [t) Story on Conflict of Laws, bb. 279, B. D. 514. 316a, 317 ; Story on Bills, s. 129. (s) Ralli v. Dennistoun, 6 Exch. 483, («) Potter V. Brown, 5 East, 124. BILLS OF EXCHANGE. 17 of dishonour to the drawer and indorser, and protest (a) must be given and made by the holder according to the law of England.- The lex loci solutionis is held to apply to the former case, because such is the obvious effect of the agreement as to the acceptor (6) ; to the latter case, because notice of dishonour and protest are regarded as integral portions not of the remedy but of the contract (c), and because the liabilities of the drawer and indorser ought to be measured by those of the acceptor whose sureties they are (d). Hence, where in consequence of the late Franco-Prussian war, several laws were passed in France successively deferring the pay- ment and protest of bills, and a bill which was so deferred and payable in France was eventually dishonoured by the acceptor, it was held that notice of dishonour and protest thereupon given was good to charge an English indorser, although the time for taking those steps, according to English law, had long since elapsed (e) . In considering these questions, it should be remembered that a bill accepted generally is payable where the acceptor resides or carries on his business, and that to change this rule a special place for payment must be named (/). A bill drawn and payable in England is an inland bill, and as such should be dealt with ; thus, if such a bill be indorsed or transferred in France, the liability of the indorser will be determined by the law of this country, at least as regards the holder (g), though it is not so clear if the same rule would obtain as between a mere subse- quent indorsee who was not the holder (h). Somewhat in conflict with the foregoing principles, it has been decided that interest, when not specified on the face of a bill, is recoverable from a drawer or indorser at the rate current in the place where the bill was drawn or indorsed, not at the rate (a) KothsohUd v. Currie, 1 Q. B. 43. (/) Don v. Lipman, 5 CI. & Fin. 1, (6) Allen v. Kemble, 6 Moo. P. C. 314. 12, 13. (c) Rothschild v. Currie, ubi supra. {g) Lebel v. Tucker, L. R. 3 Q. B. 77. (d) Rouquette v. Overmann, L. R. 10 (A) Hirsohfeld v. Smith, L. R. 1 Q. B. 525, 537 ; Home v. Rouquette, C. P. 340 ; Home v. Rouquette, ubi ubi supra. supra. (e) Rouquette v. Overmann, ubi svpra. 18 PERSONAL SECURITIES OE SECURITIES ON CREDIT. where tile bill, was accepted and dislionoured (i) ; but it may- be questioned if these decisions would be upheld in the present day (k). Foreign promissory notes need not be protested (1) ; in other respects they are governed by the same rules mutatis mutandis as foreign bills. (i) Gibbs V. ITremont, 9 Ex. 31 ; {h) See observations of Cockburn, C. Cooper V. Earl of Waldegrave, 2 Beav. J., in Rouquette v. Ovennann, vii supra. 282. (I) Bonar v. MltcheU, 5 Ex. il5. 19 PI m CHAPTER IV. CHEQUES. A CHEQUE is an inland bill of exchange drawn by a customer on bis bankers, and payable on demand to a specified person or persons, or to his or their order, or to bearer, and is of the following form :— ^ No. A. 1. '^ London, 1st January 1879. o ^ The Union Bank of London, ^ Chancery Lane Branch. Pay A. B. (or Order), (or Bearer), One hundred pounds. .2 £100 : : 0. p CD. Subject to a few modifications, cheques are governed by the same rules and admit of the same threefold division as inland bills of exchange payable on demand (a). Thus, the payee or holder must present the cheque for payment within banking hours on the day following that on which he received it at latest, provided that there are the ordinary means"' of doing so (b) ; upon such presentment and dishonour he must give notice thereof on the same or the following day to the parties he wishes to charge (c), but the time for presentment will be extended by putting the cheque into immediate circulation. (a) Ante, pp. 4—11. B. 428 ; Prideaux v. Criddle, L. E. 4 (6) Moule V. Brown, 4 Bing. N. C. Q. B. 455. 268 ; Heywood v. Pickering, L. R 9 Q. (c) Eiokford v. Eidge, 2 Camp. 539. C2 20 PERSONAL SECURITIES OR SECURITIES ON CREDIT. Again, unless the drawer has been actually damnified by want of due presentment or notice of dishonour (d), as by failure of the bank, he will be liable even in the absence of such presentment and notice to a holder otherwise entitled to sue on a dishonoured cheque (e) ; thus notice of dishonour is unnecessary to a drawer who has no eifects in his banker's hands (/). The time for presenting a cheque is not extended by passing the same through a banker (g), and, as an instrument payable on demand, no days of grace are allowed (h), nor does payment become due before demand. A cheque is an appropriation of the amount out of the drawer's money in his banker's hands (i), and by the death of the drawer, the banker's authority to pay is revoked (fc), though payment by him without notice of such death will be good (I). The drawer of a cheque may expressly prohibit his banker cashing the same ; the effect of the prohibition, or of stopping the cheque, as it is called, is to revoke the conditional payment ab initio, so that the debt for which the cheque was given may be considered as existing all along (tti). Unless revoked, it is not only the banker's authority but also his duty, having sufficient funds paid in a reasonable time before presentment, to honour his customer's drafts, and on breach of that duty the banker will be liable in an action by his customer to pay sub- stantial damages (n). What is a reasonable tinie between the payment in and the crediting of funds to a customer's account will vary according to the size of the bank and the pressure of its business (o) ; thus, it has been held that an interval of two hours was a reasonable time (p). {d) Hopkins v. Ware, L. K. i Ex. 381 ; Lynn v. BeU, J. E. 10 C. L. 487. 268 . (k) Billing v. Devanx, 3 M. & G. 571 . (e) Laws v. RancJ, 27 L. J. C. P. 76 ; {I) Tate v. Hilbert, 2 Ves., Jun. 118. Eobinson v. Hawksford, 9 Q. B. 52. Post, chap, xxxi., p. 415. (/) Wirth V. Austin, L. R. 10 C. P. (m) Cohen v. Hale, L. E. 3 Q. B. D. 689 ; Cayew v. Duckworth, L. E. 4 Ex. 371. 313. („) Eolin v. Steward, 14 C. B. 695. ig) Alexander v. Burchfield, 7 M. & (o) Whitaker v. Bank of England, 1 O- 10. C. 1. Cr. & M. & E. 744. (A) Ante, pp. 4, 10. (p) Marzetti ». Williams, 1 B. & Ad. (i) Keene v. Beard, 8 C. B. 372; 415. CHEQUES. 21 The loss of money paid on a forged cheque will or will not fall on the bank paying, according to the nature of the forgery ; if the cheque be a pure forgery, or if the drawer's name be forged, the bank must suffer, even when the cheque-book has been left carelessly about, so as to conduce to the fraud, for a banker is bound to know his customer's handwriting (q) ; if the forgery consist in an alteration of the amount named by a customer, then the latter will have to suffer if he has been guilty of sxich gross negligence as to lead directly to the fraud, but not otherwise ; thus, where a man gave his wife several blank forms of cheques signed with his name, and she filled one in for £52 2s., leaving a space before the amount, and beginning with a small f in the body of the cheque ; it was held that the customer must bear the loss of £352 2s., into which the sum had been fraudulently altered, and which the bank bond fide paid (r). Negligence in order to estop must be negli- gence in the transaction itself; negligence in the custody of a draft, or in its transmission by post, will not disentitle the owner of it to recover the draft or its proceeds from one who has wrongfully obtained its possession (s) ; if the payee's indorsement is forged to a cheque payable to a given person or his order, and payment bond fide made by the bank, the latter is exonerated (t), and the payee or drawer wiU have to suffer according as the cheque was or was not accepted in payment of a debt, and, if not so accepted, according as the payee has or has not by his negligence enabled the fraud to be committed. A bond fide holder for value claiming through a forged indorse- ment has no title, and the drawer may recover from him (u). Any draft or order drawn upon a banker for a sum of money payable" to order on demand, which shall, when presented for payment, purport to be indorsed by the person to whom the same shall be drawn payable, shall be a sufficient authority to (q) Bank of Ireland v. Evans Chari- (s) Arnold v. City Bank ; Same v. ties, 5 H. L. C. 389. Cheque Bank, L. R. 1 C. P. D. 578. (»•) Young V. Grote, 4 Bing. 253; (<) S. 19, 16 & 17 Vict. o. 59. Baxendale v. Bennett, L. R. 3 Q. B. («) Bobbett v. Pinkett, L. R. 1 Ex. D. 525. D. 368. 22 PEBSONAL SECURITIES OR SECURITIES ON CREDIT. such banker to pay the amount of such draft or order to the bearer thereof; and it shall not be incumbent on such banket to prove that such indorsement, or any subsec[uent indorsement, was made by or under the direction or authority of the person to whom the said draft or order was or is made payable either by the drawer or any indorser thereof {x). This section only protects the bankers upon whom the cheque is drawn, not any other person who takes the same upon the faith of a forged indorsement {y) ; but such bankers are protected whether the unauthorised indorsement purport to be that of the payee him- self or of his agent {z). Hence, the indorsement of a cheque payable to order (1) by an agent having no authority to indorse, (2) by a forger who forges the name of an agent having authority to indorse, or (3) by a person having no authority to indorse, but purporting to be- the agent of the person to whose order the cheque is payable, is sufficient authority to the banker upon whom the cheque is drawn to pay the amount thereof. Thus, S. K., an agent of S. & Co., the plaintiffs having authority to sell goods for them and receive payment by cash or cheque, but not to indorse cheques so obtained, received from the defendants in payment for goods supplied a cheque drawn on their bankers, payable to S. & Co. or order. S. K. indorsed it " S. & Co., per S. K., agent " (a), received the money from the bankers, and misappropriated part of it. The bankers returned the cheque to the defendants, and the amount was allowed in account by the latter. Under these circumstances it was held that the payment was protected, and the plaintiffs could not maintain an action against the defendants either for the price of the goods sold or for the cheque given (&). Besides the threefold division already alluded to, and applicable to negotiable instruments in gene- ral (c), cheques admit of another division into the two classes — Open cheques and Crossed cheques. An open cheque is a (x) S. 19, 16 & 17 Viot. c. 59. (z) Charles v. BlackweU, L. R. 2 0. (y) Arnold v. City Bank, L. K 1 C. P. D. 151. P. D. 578 ; Ogden v. Benas, L. R. 9 C. (a) Ibid. P. 513 : Halifax Union v. Wheelwright, (b) Ibid. L. R. 10 Ex. 183. UAnte,p.i. CHEQUES. 23 cheque directly payable to the payee or holder thereof, and is simply in the form above given. A crossed cheque is a cheque only payable through a banker, and is in the following form : — PI o o No. A. 1. TheU Cha Pay A. B. One hundred pou £100 : : 0. o nio nee nds London, 1st January 1879. n Bank of London, ry Lane Branch, (or Order), (or Bearer), CD. We have, so far, been dealing with the law of open cheques. The same law is also applicable to crossed cheques, except where modified by the Crossed Cheques Act, 1876 (d), which is at once a repeal and substitute of and for former legislation on the same subject (e). By that statute a cheque may be crossed in either of two ways, viz., generally or specially, and that before issue, by the drawer, or after issue, by any lawful holder, and in either case the drawer or a lawful holder may add the words, " not negotiable " (/) after such crossing, and from thenceforth the person taking the cheque shall not have or be .capable of giving a better title thereto than that of the person from whom he took the same (g). The crossing once made, forms a material part of the cheque, and none but the alterations authorised by the Act are lawful (h). When a crossed cheque, which has come to the hands of the payee, has been duly paid by the banker upon whom it is drawn, he and the drawer are entitled to the same rights as if the payment had been made to the true (d) 39 & 40 Vict. c. 81. (e) By 19 & 20 Vict. o. 26, "and Company," or " & Co.," written across the face of a cheque constituted the in- strument a crossed cheque. By 21 & 22 Vict. u. 79, two transverse lines drawn across the face of a cheque had the same effect. Both these statutes are now repealed, 39 & 40 Vict. c. 81, sch. (/) Ss. 4, 5, 39 & 40 Vict. c. 81. (7) Ibid., s. 12. (h) Ibid., s. 6. 24 PERSONAL SECURITIES OR SECURITIES ON CREDIT. owner (i). A banker paying a chetjue contrary to the provisions of the Act is liable therefor to the true owner (k) ; but if the cheque, when presented, does not appear to be crossed, the banker paying the cheque in good faith and without negligence, is discharged from liability (I), nor does he incur any obligation to the true owner by merely receiving payment, in good faith and without negligence, for a customer, of a cheque crossed generally or specially to himself. A cheque is crossed generally by writing "and Company" (m), or any abbreviation thereof be- tween two transverse lines, or by drawing two transverse lines simply across the fa6e of an open cheque (n), and the banker upon whom a cheque so crossed is drawn is bound to pay the same to any banker duly presenting, but he is not bound to pay a private holder, and if he do so, he acts at his peril (o). A cheque is crossed specially by writing the name of some banker across the face of a cheque open or crossed generally (p); but • no cheque can be ctossed specially with more than one banker's name, except that the banker in whose name a cheque is crossed may cross specially to a banker who is his agent for collection, and the banker upon whom a cheque crossed specially is drawn, is bound, on due presentment, to pay the same to the banker or his agent for collection, specially named, but he is not bound to pay any other banker or any private holder, and if he do so, he acts at his peril (q). The chief object of the Crossed Cheques Act was to afford the payee of a crossed cheque some of the pro- tection already granted to the drawer. Thus, by 19 & 20 Vict, c. 25, s. 1, and 21 & 22 Vict. c. 79, ss. 1, 4, the drawer of a cheque crossed specially could not be charged by his bankers for a payment made to any holder other than to the particular bank specified (r), but the payee of such a cheque who had in- dorsed in blank was held to have no claim against the drawee bank, which paid the amount to a bank different from that (i) Ibid., s. 9. (o) Ibid., a. 7. (i) Ibid., s. 10. (p) Ibid., a. 8. (I) Ilnd., s. 11. (q) Ibid., SB. 7, 10. /.i. 7,,. -J _ -.o ^^j Bobbett V. Pjnkett, L. K. 1 Ex. D. 368. (I) Ilnd., s. 11. (m) Ibid., a. 12. (n) Ibid., a. 4. CHEQUES. 25 specified (s). In future the payee or other the true owner of the cheque will in such a case be able to recover from the drawee bank (t), and the drawer and payee of a cheque payable to order will be able to protect themselves against the 16 & 17 Vict. c. 59, s. 19 (u), for, by a special crossing to a solvent banker, the cashing of a cheque through that banker is insured, and if the name of the payee be forged, and. payment so obtained, the drawer will have the solvent banker to recover against (x). A cheque crossed generally or specially without more, and payable to bearer, is still a negotiable instrument ; therefore, if such a crossed cheque be lost or stolen, and the finder or thief pass it to a bond fide transferee for value, the latter will become the true owner, and the loser or person robbed will cease to have any title (^). But the negotiability of a crossed cheque may be annulled by the words " not negotiable " added after the crossing by any lawful holder, and the eifect of such addition is to render the cheque a merely assignable chose in action (z), so that thence- forth any assignee takes subject to all the equities (a). Hence, in a case similar to that above supposed, the loser or person robbed would continue true owner, had the words " not nego- tiable " been added before the loss or theft (b). (s) Smith V. TJnion Bank of London, Cheque Bank, L. R 1 C. P. D. 578. L. R. 10 Q. B. D. 291 ; Md., 1 Q. B. {y) Ante, p. 7, and post, p. 27. D. 31. (2) S. 12, 39 & 40 Vict. o. 31. (t) Ss. 7, 10, 39 & 40 Vict. c. 81. (a) Post, chaps. 27, 29. (u) Ante, p. 22. (ft) Post, Ibid. {x) Arnold V. City Bank ; Same v. 26 CHAPTEE V. BANK NOTES. The instruments with which we are now to deal do not strictly fall within the compass of the present work, inasmuch as they are not properly speaking securities for money, hut are themselves treated as money or cash (a) ; and are so much a part of the circulating medium that they are not subject to the Statutes of Limitation (6). Still these instruments may well find a place in a treatise which embraces the law of bills of exchange and promissory notes, for the former are but an important species of which the latter are the genus, and as such are subject in great measure to the same fundamental principles. A bank note may be defined as any bill, draft, or note which is issued by any banker or the agent of any banker, for the payment of money to the bearer on demand, which shall entitle, or be intended to entitle, the bearer or holder thereof without indorse- ment, or without any further or other indorseriient than may be thereon at the time of the issuing thereof, to the. payment of any sum of money on demand, whether the same shall be so expressed or not, in whatever form and by whomsoever such biUs, drafts, or notes shall be drawn or made (c). Bank notes may practically be divided into four classes : — I. English bank notes. II. Irish bank notes. III. Scotch bank notes. IV. Foreign bank notes. Let us take each in order : — (a) MUler v. Race, 1 Burr. 452, J. S. 8 & 9 Viot. o. 37, s. 17 ; 8 & 9 Vict. c. Mill's Principles of Political Economy, 38, s. 8. Bk. III. c. 12. (c) 17 & 18 Vict. c. 83, s. 11 ; 33 & (6) Norton v. Ellam, 2 M. & W. 461 ; 34 Vict. c. 97, s. 45. BANK NOTES. 27 I. English bank notes are of two kinds, viz. — 1. Bank of England notes ; 2, English bank notes, other than Bank of England notes ; and first, of Bank of England notes, of which the well-known form is as follows* : — I promise to pay the bearer on demand the sum of fito pounds 1879 May 1 London 1 May 1879 For the Governor and Company of the BANK OF ENGLAND. F. May £ i'lim Ohief Cashier. A Bank of England note, as is evident from the above, is in form a promissory note, made by the Governor and Company of the Bank of England, and payable to bearer on demand, and as such, it has the attributes of a similar note made by a private person, except in so far as the same are modified by statute ; thus, a Bank of England note passes from hand to hand by mere delivery, so as to vest an absolute title in a bond fide transferee for value (d) ; hence, a person who in good faith without notice of the loss or robbery gives change or other value for a lost (e) or stolen (/) Bank of England note, obtains an indefeasible title thereto, and the Bank is bound to pay him the amount, even though the note be stopped (g) ; hence, also, there is never any danger in cashing a genuine Bank of England note (h) ; the only precaution necessary is to distinguish such a note from its forged imitation. The points in which a Bank of England note, under various enactments, is made to differ from a similar pro- missory note made by a private person, regard — (1), its issue ; (2), its exemption from stamp duty; (3), its effect as legal tender in payment of a debt. * The number of the note impressed (/) Miller v. Eace, ubi supra. onthe words "promise" and "demand" {g) Benjamin ». Bank of England, 3 is omitted. Camp. 417. (d) Ante, p. 7. (A) Raphael v. Bank of England, 25 (e) Solomons v. Bank of England, 13 L. J. 0. P. 33. East, 135, n. 28 PERSONAL SECURITIES OR SECURITIES ON CREDIT. (1.) The Bank of England was founded in 1694 by royal charter made in pursuance of 5 & 6 W. & M. c. 20, and dated 27th July of that year. Under that charter the subscribers to a loan of £1,200,000 for the public service were incorporated into a society denominated the Governor and Company of the Bank of Eng- land, with the constitution and privileges therein specified ; and by s. 28 bills obligatory and of credit under the seal of the corporation were made assignable by indorsement of the holder. It is foreign to the purpose of the present undertaking to trace the history of that great corporation (i) ; all we are concerned with is to state the existing powers of the Bank to issue bank notes. These powers are now prescribed by the Bank Charter Act, 1848 (k) (which separates the Issue from the Banking Department) (l), and are to the following efiect: — The Bank may issue notes to the amount of £14,000,000 on the credit of equivalent securities transferred and appropriated to the issue department (m) ; it may also be empowered by order in council to issue on the credit of equivalent securities, transferred and appro- priated to the issue department, notes to the amount of two-thirds of the notes issued by any English bank which relinquishes its right of issue (n) ; beyond the above, the Bank is prohibited from issuing notes except in exchange for gold and silver coin, or bullion (o), and such silver bullion is not to exceed one-fourth of the gold coin and bullion held in the issue department at the same time (p). The Bank is bound to give any person applying for the same bank notes in exchange for gold bullion at the rate of £3 17s. 9c?. per ounce of standard gold, to be assayed by persons appointed by the Bank at the expense of the applicant (q). Since its passing it has been found necessary, in consequence of a commercial crisis, to suspend the above Act on three different occasions, viz., in 1847, 1857, and 1866 ; during its suspension (i) For which see M'CuUooh's Com- (n) Ibid., s. 5. mercial Dictionary, 1869, ed. 97. (o) Ibid., s. 2. (i) 7 & 8 Vict. c. 32. (y) Ibd., s. 3. {1} Ibid., >,. 1. (2) Ibid., B. 4. (m) Ibid., B. 2. BANK NOTES. 29 the Bank was empowered to issue notes at its discretion (r). The amount for which a Bank of England note may be issued was limited by 7 Geo. IV. c. 6, to the sum of £5 or upwards, the issue in England of any promissory note payable to bearer on demand for a less amount being prohibited (s). Forgery of Bank of England, as well as other bank notes, is felony, punish- able with penal servitude for life, or for any term not less than five years, or, with imprisonment, with or without hard labour, and with or without solitary confinement, for any term not exceeding two years (t). _ (2.) Bank of England notes are entirely exempted from stamp duty (u) ; moreover, it is only the Bank of England which has the right of issuing, on unstamped paper, notes payable on demand within the City of London or three miles thereof (x). (3.) In England or Wales, but not in Ireland or Scotland, Bank of England notes payable to bearer on demand are a legal tender for any sum above £5, so long as the bank continues to pay its notes in legal coin, except at and by the bank itself or its branches (y) ; the bank in London is bound on presentation to pay the holder of any of its notes in money, its branches are bound to pay in money only such notes as are made specially payable at the branch where the note is presented for payment (z) . The sense in which a legal tender is here spoken of is that a creditor for any sum above £5 cannot object to payment of the exact debt in Bank of England notes; but he may object to receive a note for a debt above £5, which more than satisfies the debt, and the balance on which the debtor requires him to reimburse ; thus, a creditor for a debt of £7 is not bound to accept a £10 note, and hand over the change to his debtor ; the proper legal tender for such a debt would either be seven pounds in gold, or a £5 note, and two pounds in gold. We may here (r) As to the policy and eoonomioal («) 24 & 25 Vict. o. 98, s. 12. bearings of the Bank Charter Act, see (u) 7 & 8 Vict. c. 32, s. 7,; 33 & 34 J. S. Mill's Principles of Political Eoo- Vict. c. 97, sch. Bill of Exchange, nomy, Bk. III., chap. 24 ; M'Culloch's {x) 9 Geo. IV. c. 23, ss. 1, 15. Commercial Dictionary, 1869, ed. 102. (y) 3 & 4 Will. IV., c. 98, s. 6. (s) S. 4. {z) Ibid. 30 PERSONAL SECURITIES OR SECURITIES ON CREDIT. observe that, as regards money, a good legal tender is made by- copper coin for any debt not exceeding' Is. — by silver coin, for any debt not exceeding £2 — and by gold coin, for any sum whatever, such coins being issued by the mint and of standard weight (a); In order to secure safe transmission by post or otherwise, bank notes may be cut in halves (6), which may then be despatched in separate parcels (c). The holder of a half note may recover against the maker on giving an indemnity as pro- vided by the Common Law Procedure Act (d), and the real owner may after demand recover a half note by action (e). 2. The form of bank notes other than Bank of England notes varies, but, as a rule, it in general resembles that of a Bank of England note, and, like it, has the attributes of a similar promissory note made by a private person payable on demand (/), except in so far as the same are modified by statute. We may conveniently consider these modifications under three heads corresponding to those above mentioned (gf). (1.) There is only one class of banks other than the Bank of England which is entitled to issue bank notes, viz., banks existing as banks of issue on 6th May, 18i4:(h); of such banks there are two descriptions — -(A) banks consisting of not more than six partners (i) ; (b) banks con- sisting of more than six partners (k). The former description of banks, except within the City of London or three miles thereof (l), are entitled to issue notes payable on demand for any sum not less than £5 (m), but so long only as the number of partners does not exceed six in the whole (n). The latter class of banks, except within the City of London, and sixty- five {a) 33 Viot. i=. 10, s. 4. (/) Ante, pp. 4, 5. (6) Kedmayne v. Burton, 2 L. T. N, (^) Ante, p. 27. S. 324. (A) 7 & 8 Vict. K!. 32, s. 10. (c) 17 & 18 Viot. 0. 125, s. 87 ; (i) 9 Geo. IV. c. 23, ». 1 ; 3 & 4 M'DonneU v. Murray, 9 Ir. C. L. R. 495; WiU. IV. u. 98, s. 2. Grant's Law of Bankers, 434, 3rd. ed. {k) 7 Geo. IV. c. 46, s. 1 ; 9 Geo. IV. (d) Smith V. Mundy, 29 L. J. Q. B. t. 23, s. 1 ; 3 & 4 "WiU. IV. c. 98, a. 2. 172. (I) 7 Geo. IV. 0. 6, s. 3. (e) Mossop ii. Eadou, 16 Ves. 430, (m) Ibid. 3rd ed., 436, n. („) 7 & § Vict. c. 32, ss. 10—12. BANK NOTES. 31 miles thereof (o), are entitled to issue similar notes for similar amounts (p) ; but they forfeit that right by setting up a place of business within the above limits (q). With regard to both descriptions of banks, the amount of notes that may be issued is fixed at the average certified to have been in circulation during the twelve weeks preceding the 27th April, 1844 (r) ; and banks which once discontinue the issue of notes cannot resume the same (s) ; but no change in the personal composition of the company or partnership is to prejudice the right of issue (t), with the limitation above mentioned as to a partnership not exceeding six members (u). From the definition in the Stamp Act (x), it would seem that country bank notes for less than £5 may now be lawfully issued (y). (2.) By 9 G-eo. IV. c. 23, s. 1, English bank notes may be issued on unstamped paper, except within the City of London, or within three miles thereof, by bankers duly licensed so to issue (z). With that exception, bank notes must be stamped as provided by s. 45, 33 & 34 Vict. c. 97 ; and the default of a banker in issuing unduly stamped notes or of any person in knowingly receiving or taking such notes in payment or as a security is punishable by a penalty of £50 or £20 respectively (a). Further than the above penalties, default in stamping entails no disability; so that, unlike a simple promissory note (6), a wrongly stamped bank note, is still a valid instrument. Once duly stamped, a bank note may be re-issued without further stamping (c). (3.) No bank notes, except those of the Bank of England, are a legal tender (d) in England or Wales ; nevertheless, when bank notes are offered and accepted without objection in payment on a present transaction, as on a sale of goods, the purchaser will be (o) 9 Geo. IV., 0. 23, s. 1 ; 3 & 4 (y) Chitty on Bills, 11th. ed., 15 ; sed WilL IV., c. 98, s. 2. qucere. (p) 7 Geo. IV., 0. 46, s. 1. (z) 7 & 8 Vict. c. 32, s. 22 ; 17 & 18 (g) Ibid. ; 27 & 28 Vict. o. 32, =. 1. Vict. c. 113, ss. 12, 2, 4, 7. (r) 7 & 8 Vict. c. 32, s. 13. (o) 33 & 34 Vict. c. 97, a. 47. (s) Ibid., a. 12. (6) Ibid., h. 54. («) Ibid. (c) Ibid., s. 46. («) Ante, p. 30. (d) Ante, pp. 29, 30. (x) 33 & 34 Vict. c. 97, s. 45. 32 PERSONAL SECURITIES OR SECURITIES ON CREDIT. absolutely discharged (e) ; so, any creditor who accepts bank notes in payment of a debt takes them at his peril, except the debt be pre-existing (/), or the taker can show there was fraud or forgery {g), but even in such cases the debtor will be dis- charged, unless the creditor do all that the law requires to obtain payment, as duly presenting to the bank for payment Qi), or, on the bank's insolvency, tendering the notes for payment to the person from whom the holder received them (i), A bank note ought to be presented within a reasonable time, as measured by the circumstances of each particular case {7c) ; but such time is extended by putting the note into immediate circulation, or by passing the same through the hands of any third person, even those of one's own servant, so long as his capacity does not identify him with his master {I). Neither the insolvency nor the statement of a banker's intention to refuse payment will absolve the holder from presenting and demanding payment of notes within a reasonable time (m). Notice of dishonour of bank notes must be given within the same time as on bills (to). II. Irish bank notes are of two kinds, viz. :-- 1 . Bank of Ireland notes. 2. Irish bank notes, other than Bank of Ireland notes, 1. The Bank of Ireland was founded in 1783 by charter made in pursuance of 21 & 22 Geo. III. c. 16, and dated 10th May, of that year ; under that charter the subscribers to a loan of £600,000 for the public service were incorporated into a society, denominated the Governor and Company of the Bank of Ireland, with the constitution and privileges therein specified. The powers of the Bank to issue bank notes are now prescribed by 8 & 9 Vict. c. 37 ; the effect of that statute is to prohibit any banker in Irelaad from having in circulation during any period (e) Polglass V. OUver, 2 C. & J. 15. (i) Howe v. Bowes, 5 Taunt. 30. (/) Timmina v. Gibbins, 21 L. J. (h) Camidge «>. Allenby, uU swpra. Q- B- 402. (I) James v. Houlditoh, 8 D, & K. 3. (g) Fuller v. Smith, E. & M. 49. (m) Howe v. Bowes, 6 Taunt. 30. (A) Oamidge v. AUenby, 6 B. & C. («) Williams v. Smjth, 2 B. & A. ■^'^- 496, ante, pp. 6, 11. BANK NOTES, 33 of four consecutive weeks an amount of notes exceeding both the amount he had in circulation for a corresponding period during the year ending 1st May, 1845, as ascertained from the average, certified to have been in circulation during that year, and the average amount of gold and silver coins' held by such banker during the said period of four weeks (o). The Bank of Ireland may, however, acquire the right to issue an additional amount of notes equal to that which might have been lawfully issued by a banker relinquishing his right of issue (j?). To Bank of Ireland notes the account above given (q) of Bank of England notes applies in many respects : thus, a Bank of Ireland note is a promissory note of a similar description (r) ; its forgery is felony liable to the same punishment (s) ; it is entirely exempt from stamp duty (t) ; it must be cashed on pre- sentation for payment at the bank in Dublin. Yet there are several notable differences between a Bank of England and a Bank of Ireland note : thus, the latter may issue for £1 or any multiple, but not fractional part, thereof (u), though any note for less than £5 must be drawn in a prescribed form («), a restriction which has at times been dispensed with (y) ; so, there are no provisions for the exchange of Bank of Ireland notes for bullion (z), or that such notes should be a legal tender (a) ; hence, it would seem that gold is, strictly speaking, the only legal tender in Ireland for sums above £2 (b); so, all promissory notes issued by any banker in Ireland must be payable at the place of issue (though they may be made payable at other places as well), which must be expressly mentioned in the instrument (c). 2. Irish bank notes, other than Bank of Ireland notes, can only be issued by bankers lawfully issuing their own notes on (o) 8 & 9 Vict. c. 37, bs. 8, 14, 19. (x) Ibid., s. 25. (p) Ibid., 8. 12. iy) 27 "& 28 Vict. c. 20 ; 36 & 37 (S) Ante, pp. 27—30. Vict. c. 75. (r) Ante, p. 27. (z) ^»i {d) Bank of Scotland v. Watson, ubi supra. SMpra; Sibreew. Tripp, 15 M.&W. 23; (h) Daniel v. Cross, 3 Ves. 277; sed qucere, Grey v. Smith & Anr., 1 Gough v. Davies, 4 Price. 200 ; Bil- Camp. 387. borough v. Holmes, L. R 5 Ch. D. 255 (e) Edwards v. Vere, 5 B. & Ad. 282. (i) Hewitt v. Kaye. L. R. 6 Eq. 198 (/) Post, chap, xxxii. 40 PERSONAL SECURITIES OR SECURITIES ON CREDIT. must be put on the same footing as a deposit note for goods (k). That analogy, however, can have no application, unless the money be locked up in a box, which the banker does not open, or unless' the identical money is to be returned (I); the deposit of money in the usual way gives rise' to what ia Romatt-' law , -was termed a contvsict 'mutmim, the Essential attribute of which was to transfer the property in the''subj6dt 'deposited to the depositee;'; thehcefoiWthe depositot eould ticft '-s'tte to recover the actual subject but' Only an equivalfeiit, '■vrherea's B, deposit 6f gdods -was termed a' contract depositttni, by which the possession, but. not the property in the subject- deposited, pa^sedtftom the depositor to the de'positfee' (in). ' The saine rule,' it is subiiJ-itted, must apply in Eiigli&h law/(fe)'< "so -that -the depdsifoT 'bf money in- the usuaPway losesiiis' right of jprSpe^ty^; and becbmfe ■entitled ^ a chose -in ctetionj the uatUi'd aid transfer of which 'miist'bfe' according to'thoSe of 'other ehos^s in action (b) ; ' knd'ffia!t was the principle upon which' the above fcasS wak argued on both sides. Ill i§suiteg & deposit llote,' a- baiiker'i Ought to'talceeare ■ that the !sa,rb:e 'be deliverbd to the person iW whose faivdtir it is given; otherwise he may lay himself open to eC doiible'Kahi- lity (p). The- Statute of Limitations applies td money deposited -with'a-bahker.' (g'). ■' -.; -ti'' . •• :*,■''. ■ '■■:■' •.'~.:{k)- WoodBiams v. 'The Auglo-Austra-; (»)'See judgment-of Holt, C. J., in Ijan and Universal Family Asaur. Oo,,v, Qoggs v. Bernard, Ld. iRaym-. 909. ^'tJiff. 238; ■ ■ ^' (o)'J'osS, chap. xxix. '■'" il) Sibree?)'. Tripp,;15M.&W.23, 37. [p) Cochrane ?j.: O'Brien,: 2 J. & L. (m) Just. Insts. Lib. iii. Tit. xiv. ; 380. Dig. xii. 1, 9, pr. and 3 ; Dig. xUv. {q) Pott v. Olegg, 16 H. & W. 311. 7, 1, 5. 41 CHAPTEE VIII. LETTERS OF CREDIT AND CIRCULAR NOTES. A LETTER of credit is a written request or authority to honour the drafts of a person or persons named therein, empowering the person or persons so honouring, to charge the amount advanced to the account of the person or persons from whom such re- quest or authority mbves, and is of the following form : — Union Bank, London, 1st January, 1878. Please to honour the drafts of Messrs. A. & B. to the extent of one hundred pounds, and charge the same to the Union Bank, London. I am, your, &c. &c. &c., £100 0- John Smith, Cashier. To the National Bank of Liverpool, ) Liverpool, j A letter of credit may be addressed to some specified person or persons, in which case (as in the instance given) the instru- ment is a special letter of credit, and only authorises the person or persons so addressed to make advances ; or a letter of credit may not be addressed to any one, in which case the instrument is a general letter of credit, and authorises any one who is willing to honour the drafts, in pursuance of such letter, to make advances (a). Letters of credit are employed for the purpose of transmitting money to a distance, whether within the United Kingdom, to the colonies, or abroad, with the view of obviating the inconvenience and risk attendant upon (o) British Linen Co. v. Caledonian Asiatic Corporation L. R. 2 Ch. 391. Insurance Co., 4 Macq. 113 n. In re A letter of credit must be stamped as a Agra and Mastennan'B Bank; ExpaHe bill of exchange, 33 & 34 Vict. c. 97, s. 48. 42 PERSONAL SECURITIES OR SECORITIES ON CREDIT. personal carriage of large sums ; thus, suppose a tradesman in London lias to go over to Paris to make purchases, he may avoid exposing the funds that are to defray the price, to the dangers of the journey, by paying in the same to a London banker or merchant, and receiving in return a letter of credit for the amount addressed to a Paris banker or merchant, upoii whom he can draw when his destination is reached; in that way he need only have about him as much cash as will sufiice for travelling expenses. A simple letter of credit, such as we have now described, is not a negotiable instrument, nor is the grantor of such a letter answerable for any advances, not made in strict conformity with its terms (6) ; hence, if the instrument be lost or stolen, and money be paid on forged drafts, the granter will not be liable for such payments, but the person making the same must bear the loss, unless the true owner of the letter has conduced to the fraud, in which event the loss will fall on him, if the forgery of the draft be a forgery, that in the case of a cheque would have left the drawer to sustain such loss(c). The 16 & 17 Vict. c. 59, s. 19, does not apply to letters of credit ; hence, bankers who pay forged drafts purporting to be drawn in accordance with genuine letters of credit, are in no better position than other persons making similar payments (d). If the drafts of the true owner of a letter of credit are not honoured, or if they do not exhaust the amount of the credit, he is entitled to recover from the granter the funds he may have given therefor, or the balance that may still be remaining in the granter's hands, but the latter is not bound to return such funds, unless the letter of credit be re-delivered to him, or, in case of its loss or destruction, unless he receive an indemnity against any claim thereunder (e). Possession of the letter of credit is no poof that money has been paid in pursuance thereof; the proper evidence of that fact is furnished (J) Orr and Barber v. Union Bank of (d) British Linen Co. v. Caledonian Scotland, 1 Macq. 613. Post, p. 44. Insurance Co., i Maoq. 107. (c) British Linen Co. v. Caledonian (c) The Conflans Quarry Co. v. Parker, Insurance Co. 4 Macq. 107. Ante,x>p. 20, L. E. 3 C. P. 1. 22. "^ LETTERS OF CREDIT AND CIRCULAR NOTES. 43 by possession of the drafts that have been honoured according to its tenor (/). By a letter of credit authority may be given either to draw drafts for money directly or to draw bills of exchange, and, in the latter instance, the letter of credit is frequently written in the margin of a blank bill ; the whole instrument is then called a marginal letter of credit, and is of the following form (5'): — No. 39. ^ Credit for £2,000 stg. to in duplicate. 4907. 01 National Bank of Scotland, Edinburgh, 24th June, 1864. To Messrs. Fletcher & Com- pany, China. I hereby, for the National Bank of Scotland, authorize you to draw the annexed bill of exchange at six months' sight for two thousand pounds ster- ling on Messrs. Glyn & Co., bankers, in London, who will honour the same in conformity withits tenor, if presented along with this letter of credit within one year from this date. Thos. Anderson, Secretary. Jno. J. Shearer, P. Manager. A marginal letter of credit partakes of the nature of a simple bill of exchange ; as such, it is a negotiable instrument, at least to the extent of the undertaking it purports to contain ; there- First of Exchange for £2,000 sterling. No. j|^t F. Place and date of drawing, Shanghai, 5th April, 1865. Six months after sight pay this first of exchange (second of the same tenor and date not being accepted or paid), to our order, the sum of two thousand pounds sterling, which charge to the National Bank of Scot- land as per annexed Letter of Credit. To Messrs. Glyn & Co., Bankers, London. Drawer signs here Fletcher & Co. (/ ) Orr and Barber v. Union Bank of Scotland, 1 Macq..613. (g) Maitland v. The Chartered Mercan- tile Bank of India, London, and China, 38 L. J. Oh. 363. 44 PERSONAIi SECURITIES OR SECURITIES ON CREDIT. fore a bond fide holder for value cannot be affected by a private arrangement between the granter and the drawer, but in the absence of notice will be entitled to sue the former, although the bill was drawn and indorsed in violation of such arrangement. Where a marginal letter of credit is granted on the understand- ing that the parties to whom it is granted will take up when due any bills drawn thereunder, or that the moneys realised are to be invested in the purchase of goods to be consigned to this country, and that, on receipt of the bills of lading, the granters will accept and pay the bills of exchange, it is usual to recLuire a guarantee from some house in this country for the due performance on the part of the foreign firm of the engage- ment entered into (h). Marginal letters of credit are divided into two classes, viz. — (i) open credits, or letters of credit, which unconditionally undertake that the accompanying bill of exchange shall be accepted, subject or not to a proviso that the bill shall be drawn or presented within a given time (i) ; (2) documentary credits, or letters which undertake that the accompanying bill shall be ac- cepted, on condition that the bills of lading and other shipping documents of title to goods consigned by sea are delivered to the ' intending acceptors before presentment of the bill of ex- change {k) ; the delivery of the document of title is in such case a condition precedent to the acceptance of the bill of exchange ; the insolvency of the drawees does not absolve the drawers from offering such documents, as the insolvents may possibly provide funds to meet the demand (I). Where the A. bank granted a letter of credit to the S. H. Company on B. & Co.'s guarantee that the company would perform stipulated conditions, the failure of the bank after accepting certain of the drafts was held not to exonerate the company from the per- formance, and that therefore B. & Co.'s were not released from (A) Banner v. Johnstone, L. B. 5 H. Ch. 391. L. 157. {k) Banner v. Johnstone, vibi awpro. (t) In re Agra and Masterman's Bank ; (l) In re Agra Bank ; ex pourte Ton- ex parte, Asiatic Corporation, L. E. 2 deur, L. R. 5 Eq. 160. LETTERS OF CREDIT AND CIRCULAR NOTES. 45 their guarantee (m). On the failure of the granter of a mar- ginal letter of credit the grantee is empowered to recover commission, notarial, and other necessary expenses he has been put to in getting the bills taken up {n). If such granter be a company the drawer of bills accepted by the company can only prove in the winding up for the balance after realization of any security the company holds from him as mortgagee (o). It was otherwise, however, when the company being wound up was mortgagor, for there the secured creditor was entitled to prove for the amount due when his claim was sent in, without regard to securities, which had been realized by him between the sending in of his claim and its being adjudicated upon (jp) ; but since the 1st November, 1875, a secured creditor of a company, the winding up of which began after that date, can only prove as in bankruptcy {q). Circular notes closely resemble simple letters of credit, in their nature and incidents ; the chief difference is that the former are issued for definite amounts, the payment of more or less than wliich is not authorised, and that they are cashed directly without the intervention of drafts. It is usual to accompany the issue of circular notes with a letter of credit, requesting the person or persons to whom the notes are addressed, to pay the same to the person or persons whose signature or signatures are attached to the letter of credit, and in whose favour such letter and notes are granted. The letter of credit is then called a letter of indication ; and it should be signed by the person to whom the notes are payable before starting for the place where they are to be cashed, as by that means the risk of forgery in case of loss is obviated. The following is a form of circular note : — (m) Ex parte Agra Bank ; in re wood's Claim, L. B. 5 Ch. 18 ; Fottrell Barber & Co., L. K. 9 Ex. 75, post, v. Kavanagh, I. E. 10 Eq. 256. chap. XV. (S) S. 10,' 38 & 39 Vict. c. 77 ; In re (n) Prehn. and Anr. v. Royal Bank Coal Consumers' Association, L. R. 4 of Liverpool, L. R. 5 Ex. 92. Ch. D. 625 ; In re Westbourne Grove (o) In re Bamed's Banking Co. ; Drapery Co., L. R. 5 Ch. D. 248 ; In re Conpland's Claim, L. B. 5 Ch. 167. Joseph Suche & Co. L. R. 1 Ch. D. 48. (p) Kellock's Case, L. R. 3 Ch. 767 ; Post, chap, xjcxi. m re Bamed's Banking Co. ; For- 46 PERSONAL SECUEITIES OK. SECURITIES ON CREDIT. " The National Bank. " No. 2663. Lettre de Credit Circulaire pour £10 sterl. " Londres, ce 23 mai, 1866. " A Messieurs les banquiers design^s dans nos Lettres d'Indication. " Messieurs, — Cette lettre vous sera remise par M. dont vous trouverez la signature dans notre lettre d'indication sous- dite. Je vous prie de vouloir bien lui compter sans frais quelconcLue la valeur de dix livres sterling au cours d'usance sur Londres, contre sa traite ci-jointe sur cette banque. " J'ai I'honneur d'etre, Messieurs, " Votre trfes ob^issant Serviteur, " Secretaire" (r). "John Parker, G^rant." At the back was printed the following form of draft on the National Bank : — " The National Bank, "£10 "London. "A sept jours de vue prefix payez k I'ordre de M, dix livres sterling, valeur re5ue k "Ce , 1866." The letter of indication which accompanied the circular notes was as follows : — " Lettre d'Indication. " The National Bank, " Londres, ce 23 mai, 1866. " Messieurs, — Le porteur de cette lettre, M. , pour lequel nous r^clamons vos attentions, est muni de nos billets de (r) The Conflans Quarry Co. v. Parker, L. R. 3 C. P. 1. LETTERS OP CREDIT AND CIROITLAR NOTES. . 47 change circulaires ponr son voyage. Nous vous prions de lui en fournir la valeur sur son double acquit au cours du change a usance sur notre place, et sans deductions de frsiis. " Si la ville oil il en touchera le montant n'a pas de change direct sur Londres, vous voudrez bien en combiner un avec la place cambiste la plus voisine. " Vous observerez que tout agis sur esp^ces d'or ou d'argent, et tons frais extraordinaires dans le cas d'un remboursement indi- rect, doivent Stre supportds par le porteur, et ne peuvent ^tre a notre charge. " Cette lettre devant accompagner nos billets circulaires doit rester dans les mains de leur porteur jusqu'^ leur ^puisement. " Nous avons I'honneur d'etre. Messieurs, " Vos trfes humbles et trfes ob^issants Serviteurs, " Signature du proteur " Secretaire, " ." " Q4rant" At the back of the letter of indication was conspicuously printed in red ink the following : — " Particular attention is requested to the following note. "The bearer of this letter is requested to insert his usual signature in the blank space at the foot of the letter, before settiag out, as an indispensable precaution against forgery, should the circular notes fall into improper hands. He should also be careful to keep this letter apart from the notes ; and he is particularly requested not to indorse them, except in the presence of the banker of whom payment is required. The full amount, at the annual rate of exchange, will then be paid with- out any deduction in respect of commission. '' It is essential that the name of the place where each note is changed, and the date, should be inserted in the blank spaces in bill at the back of the note." The names and addresses of various banking firms were appended to the letter of indication as the persons to whom it was addressed (s). (8) Ihid. 48 CHAPTER IX. POST OFFICE MONEY ORDERS. A POST office money order is a printed instrument issued by the Postmaster-General under tlie sanction of Parliament (a), at the instance of a' person paying into the money order depart- ment of a post office a certain sum of money in favour of a given person, and made payable by such instrument at a given place, and when inland is substantially of the following form : No.- stamp of Issuing Office. £ s. d. MONEY ORDER. Pay the Person named in my Letter of Advice the Sum of £ s. d. To the Post Office at- - Controller. Received the above J Signature of \ Payee. '{ I request that this may be-\ exchanged for a new Order > payable at* J * Here state the name of office. Signature. C. ■ I request that this Order may not be paid until ten days after date of issue. Signature of Remitter. Stamp of Paying Office. (a) 3 & 4 Vict. c. 96, s. 38. POST OFFICE MONEY ORDERS. 49 On the face of the instrument are printed instructions for the modes in which the several signatures are to be filled up ; on the back are further instructions for the mode of applying for a money order, and as to the time and stoppage of payment of the same, also as to exoneration of the department when payment is once made, and as to alteration in the name of the payee, and application for duplicate orders. A postmaster on issuing a money order sends a letter of advice to the postmaster of the office where the order is payable ; in the case of some foreign orders — as those on the German Empire — no order is issued in this country, but only a receipt is given and a letter of advice sent to the foreign country ; in the case of other foreign orders, as those on France, an order is issued in this country, which, however, differs in some respects from an inland order. Post ofBce orders are either inland or foreign, according as they are issued, payable within the United Kingdom or at certain places abroad ; in both instances they are only issued for sums not exceeding £10 ; and, in both, the Postmaster-General is empowered to refund to the grantee the amount of the order, and thereupon his liability shall cease (6). The scale of charges for inland money orders is now as follows : — For sums under 10s. „ of 10s. and under £2 „£2 i> £3 „ £3 j> £4 „ £4 » £5 „£5 » £6 „ £6 iy £7 „£7 It £8 „£8 j> £9 „£9 j> £10 „£10 ... (i) 11 & 12 Vict .c. 88 2d. 3d. 4d 5d 6d. 7d. 8d. M. lOd. lid. Is. s. 3. 50 PERSONAL SECUEITIES OR SECURITIES ON CREDIT. The scale of charges for foreign money orders, and the places (c) on which the same {d) are issued are as follows ; For sums not exceeding If payable in Belgium, Denmark,' France, the German Empire, Heligoland, Holland, Dutch East Indian Possessions, Italy, Norway, Switzerland, Gibraltar, Malta, Constantinople, or Smyrna (e). If payable in any other place abroad, authorized to transact money order business with this country, including : — ^Alexan- dria, Berbice (New Amsterdam), Belize (British Honduras), British Columbia, Cape of Good Hope, Canada, Ceylon (Co lombo), Coquimbo, Demerara (Georgetown), Egypt, Falkland Islands, Gold Coast, Hong Kong, India, Mauritius, Natal, New Brunswick, Newfound- land, New South Wales, New Zealand, Nova Scotia, Panama. Prince Edward Island, Queens- land, St. Helena, Seychelle Islands, Shanghai, South Aus- tralia, Straits Settlements, Suez, Tasmania, United States, Val- paraiso, Victoria, West Coast of Africa, West Indies, Western Australia, Yokohama. / £2. 9 £5. 1 6 1 2 £7. 2 3 £10. 3 3 4 (c) Considerable variations in the rates of exoliange with any foreign country may occasionally necessitate an increase or decrease of the commission. {d) When a whole country is named, money orders may be drawn, as a rule, on any important town in that country, as also on the many smaller towns, of which complete lists are kept at every Money Order Office. — British Postal Guide. (e) On some countries actual orders are issued — e .g.,on France. 1*0 other coun- tries only letters of advice are sent— e.g., the German Empire— the applicant merely receiving a receipt for his money. POST OFFICE MONEY ORDERS. 51 The power to issue, and the conditions npon which money orders are issued, are determined by 3 & 4 Vict. c. 96, s. 38, 11 & 12 Vict. c. 88, as amended by 38 & 39 Vict. c. 66, and the Regu- lations made by the Postmaster-General, with the assent of the Commissioners of Her Majesty's Treasury, which have the same force as legislative enactments (/). By the 3 & 4 Vict. c. 96, s 38, the regulations and conditions upon which money orders were then issued — that is, in 1840 — were confirmed so long as the Commissioners of the Treasury should not otherwise order. By 11 & 12 Vict. c. 88, s. 2, the Postmaster-General is em- powered, with the assent of such Commissioners, to make regulations relating to money orders which are to have the same effect as if inserted in the statute. No action is to be brought against the Postmaster- General or any officer of the Post Office, or any other person whomsoever for or by reason of such regula- tions, or by reason or in consequence of refusal or delay in pay- ment of any money order through the accidental neglect, omis- sion, or mistake, by or on the part of any officer of the Post Office, or for any other cause whatsoever, without fraud or wil- ful misbehaviour on the part of such officer {g). By s. 3 (A), the Postmaster-General may refund the amount of any money order to the person or his executors or administrators to whom such money order has been granted, whether the same shall remain or be in the possession of such person or not ; and upon such repayment all liability of the Postmaster-General or of any officer of the Post Office or of the Post Office Revenue, shall absolutely cease and determine. By s. 4 (i), any officer of the Post Office issuing a money order with fraudulent intent is guilty of felony in England or Ireland, and of a high crime and offence in Scotland, and may be punished with penal servitude for any term not exceeding seven years, or with imprisonment for any term not exceeding three years (k). (/) 11 & 12 Vict. u. 88, s. 2. (A) lUd. (jr) Sec. 2 does not seem to exonerata (i) Ibid. the Postmaster-G-eneral for his own (h) 20 & 21 Vict. u. 3, s. 2 ; 27 & 28 default. Vict. 0. 47,8,2. E 2 52 PERSONAL SECURITIES OR SECURITIES ON CREDIT. By s. 5 (T), in indictments for offences relating to the Post Office, it is sufficient to lay tlie property in "Her Majesty's Postmaster-General," and so to describe him as the party intended to he defrauded. By s. 6 (m), the order, consent, or direction of the Commissioners (n) of Her Majesty's Treasury to anything to he done in pursuance of the Act, may he signified under the hands of such Commissioners, or under the hand of one of their secretaries or assistant-secretaries. By s. 7 (o), printed copies of the " London Gazette " are to be evidence of the regulations issued under the Act. By s. 8 (p), the Act is to be deemed a Post Office Act, and to be construed as 3 & 4 Vict. c. 96. The regulations issued in pursuance of 11 & 12 Vict. c. 88, s. 2, are practically contained in the "British Postal Guide ;" the most important, in addition to those already mentioned which pro- vide for the commission, amounts, and places, on or for which money orders are issued, may be thus stated (q) : No money order can be issued unless the applicant furnish, in fuU, the sur- name, and at least the initial of one Christian name, both of the remitter and the payee, together with the remitter's address. In the case of foreign orders the full address of the payee must be given ; and if the order be payable to a native of British India, the tribe or caste, and the father's name, must also be, furnished. Exceptions. — 1st. When the remitter directs at the time of issue (which he is at liberty to do), that the order, by being crossed like a cheque, be made payable only through a bank, it is left to his option to give or withhold the name of the payee. 2nd. If the remitter or payee be a peer or a bishop, his ordinary title is sufficient. 3rd. The usual designation of a firm is sufficient, except in the case of a company trading under a title which does not consist of the names of the persons composing it, as the " Carron Company." (I) Ibid. (o) 11 & 12 Vict. o. 88. (m) Hid. (p) Ibid. in) 38 & 39 Vict. c. 66. {q) Ante,^p. i9, 50. POST OFFICE MONEY ORDERS. 53 The holder of a money order is always at liberty to direct, by crossing it, that the order be paid through a bank, even though its payment was not originally so restricted; and when the order is thus presented, the question put on the presentation of an ordinary money order is dispensed with ; and it is sufficient that it be receipted (without regard to any discrepancy between the signature and the name in the advice), and that it be pre- sented (crossed with the name of the receiving bank), by some person known to be in the employment of the bank. A money order not crossed will be paid on presentation, provided the postmaster find the payee's signature to agree with the advice, and that the applicant give the correct name of the remitter, unless the postmaster have good reason for believing that the applicant is neither the rightful claimant, nor deputed by him. But in no case can payment be demanded on the day the order was issued ; and, on the other hand, an order still unpaid be- comes void at the end of twelve months from the date of issue, though an application for payment, subject to a certain deduc- tion, where good reason can be given for the delay in present- ment is entertained. But no application can be entertained for compensation for alleged injury from the non-payment of a money order at the expected time, and after once paying a money order, by whomsoever presented, the office is not liable to any further claim. An order once issued cannot be cancelled ; but payment may be stopped — of an inland order, on application at the office where the order is payable, and on payment of a second commission — of an order issued by a colony in the United Kingdom, on appli- cation to the controller of the metropolitan office of that portion of the kingdom where such colonial order is payable, and on payment of an additional British rate of commission inclosed with the application. Transfer of payment of an inland order from one office to another in the United Kingdom, or repayment of the amount of the order, may be obtained on application, inclosing the order to the postmaster at whose office the order is payable, who will transmit in exchange a new order, payable 54 PERSONAL SECURITIES OR SECURITIES ON CREDIT. at the place desired, but for a less sum than the original order by the amount of the second commission charged for the re- issue ; the form of application may be obtained at any money order office. Postmasters in the United Kingdom have power to transfer to other offices in the United Kingdom payment of colonial and foreign orders originally drawn on their own offices. Alteration in the name of the payee or remitter of an inland money order may be obtained oh application, accompanied by the payment of a second commission to the postmaster of the office at which the order was issued. Duplicate orders, on written application, with the necessary particulars, being for- warded to the controller of the money order office in England, Ireland, or Scotland respectively, are granted of inland orders on the following terms : — (1), in case of miscarriage or loss in transmission through the post, free of charge ; (2), in case of loss after delivery of .the letter inclosing order, on payment of Is. commission of an order not exceeding £5, or on payment of 2s. commission of an order above £5, and not exceeding £10 ; such commission to be forwarded in postage stamps together with the application. Duplicates of orders issued by a colony on the United King- dom may be obtained in the same way as stoppage of such orders is effected. A money order payable in London, or at any other town where there is more than one money order of&ce, can only be cashed at the head office, unless the remitter name some other particular office when he applies for the order. A money order may be made payable ten days after date, by the remitter, in presence of the postmaster, when he obtains the order affixing thereto, in the space after the request C, a penny receipt stamp, and writing his signature across the stamp ; except for this purpose no receipt stamp is required. To secure the safe transmission of a money order, the remitter is recom- mended to sign the letter inclosing the order with bis initiate only, or make the order payable ten days after date, or register the letter inclosing it, or make it payable through a bank by cross- POST OFFICE MONEY ORDERS. 55 ing it like an ordinary cheque, or send the remitter's name and the order by different letters (r). Orders issued in the United Kingdom, and payable in the German Empire, are subject to the conditions that govern the payment of orders in that Empire. Orders issued in France on the United Kingdom cannot be paid after three months from the date of issue, without the authority of the French post ofiice, and orders issued in the United Kingdom on France, cannot be paid after three months from the month of issue without the authority of the chief office, London. Orders issued in the United Kingdom, on Italy, and vice versd, cannot be paid after three months from the month of issue without the authority of the chief office of the country of issue. Such then being the enactments and regulations under which post-office orders are issued, we may next consider the nature and effect of these instruments. Looking at their mere skele- ton form, apart from the instructions, it seems impossible to deny that money orders are genuine bills of exchange ; the only points of difference from ordinary bills being that the name of the payee does not appear on their face when issued, and that, instead of being addressed to a given person, they are drawn on an office, but neither circumstance is essential to the existence of a bUl, provided the name of the intended payee be afterwards duly fiUed up, and that they are accepted at the place on which they are drawn (r). The question, therefore, is, whether the (s) conditions under which these orders are issued, and the instruc- tions thereon, rob such instruments of their primary character : we submit that those conditions and instructions have each that effect. No matter what the nature of money orders origi- nally was in strict point of law, there can be very little doubt that in the year 1840 they were issued by the Postmaster- General under regulations which assumed that they were not bills of exchange. Whether that assumption was right or wrong it received the confirmation of Parliament in that year ; (r) Cnitchley v. Mann, 5 Taunt. 529 ; Hogarth v. Iiatham, L. E. 3 Q. D. 643. Attwood I). Griffin, Ey. & Mod. 425 ; (s) ■ Gray v. Miluer, 3 Moore, 90. 56 PERSONAL SECURITIES OK SECURITIES ON CREDIT. therefore, from that day to this, money orders have been issued under statutory conditions which denied to them the character of bills of exchange. As regards the instructions, they have no bearing unless they both form a material part of the instrument, and are inconsistent with the same being a bill of exchange. It does not appear important to ask whether at Common Law they would form such a part, for we may agaia assume that by virtue of 3 & 4 Vict. c. 96, or of 11 & 12 Vict. 88, the money order is issued, subject to those instructions; but even at Common Law indorsed conditions may' transform a bill into a different contract (t). We have, therefore, only to in- quire whether an instrument into which such provisions are incorporated can amount to a bill of exchange ; we submit that it cannot, on the simple ground that the effect of these provisions, at least such as are indorsed, is to render payment conditional within the meaning of the authorities which decide that no con- ditional order for the payment of money can constitute a bill of exchange (w). Apart from the conditions and instructions under which they are issued, money orders would, we have said, be genuine bills of exchange ; but they would be non-negotiable bills, for they are only drawn in favour of a particular person, (x) not of such person or his order, or bearer. It is another but very important question whether money orders are bills of exchange within the meaning of the Stamp Act, 1870 ; this is no doubt a highly arguable point, unless regulations, as authorised by 11 & 12 Vict. c. 88, have been issued since the passing of the Act of 1870, dispensing with the necessity of a stamp on such orders, and even then the validity of such regulations might not be beyond dispute. If language has meaning, money orders are clearly within the term " bill of exchange," as defined by s. 48 of the Stamp Act, and such was the opinion of the judges under a corresponding provision in 55 Geo. III. c. 184, which was hardly as comprehensive as the (*) Lesds V. Lancashire, 2 Comp. 205. 674. Ante, pp. 3, 9. (m) Kingstdu V. Long, 4 Doug. 9 ; (x) Ante, pp. 4, 9. Worley v. Harrison, 3 A. & G. 669 & POST OFFICE MONEY ORDERS. 57 existing law (y). But a decision on the point was avoided by- holding that before the 3 & 4 Vict. c. 88, money orders were issued unstamped, and that by s. 38 of that statute the practice was legalised ; therefore it was unnecessary actually to decide on the construction of 55 Geo. III., since the case at bar was taken out of its operation (z). It may seem a preposterous notion to suppose that a special enactment like the 3 & 4 Vict. c. 88, coiild be overridden, with9ut express mention by a general measure like the Stamp Act; but from a recent analogous case (a) it would seem that such a result is possible, and that the principle generalia specialibus non derogant is subject to many limitations. In case the Stamp Act does override the 3 & 4 Vict. c. 96, money orders must bear a stamp in the absence of express regulations to the contrary, issued pursuant to 11 & 12 Vict. c. 88, since the Stamp Act came into force ; whether such regulations have power to curtail the operation of that Act, must depend on the prospective effect to be given to 11 & 12 Vict. c. 88. If money orders be bills of exchange within the Stamp Act, then the want of a stamp subjects the person issuing, transfer- ring, negotiating, receiving, or suing upon such orders, to the penalties and disabilities mentioned in s. 54 of that Act (b). We shall hereafter see that no action can be maintained on such a bill, nor can the same be made available by the holder for any civil purpose, though the above section contains a proviso by which a bill payable on demand may be stamped subsequent to its issue. The inclusion or exclusion of money orders within or from bills of exchange as defined by the Stamp Act, leaves their general nature still undetermined ; it would seem, however, that a money order is a peculiar kind of valuable security, the attri- butes of which can only be ascertained from the conditions and (y) Reg. V. Gilchrist, 1 Oar. & Mar. Gas. 944, overruling Court of Appeal 224. L. R. 2 Ex. D. 349 ; ex pa/rte Mercers' (2) Ibid. Co. 10 Ch. D. 481. (a) Gamettu Bradley, L. R. 3 App. (5) Reg. ■<>. Gilchrist, ubi supra. 58 PERSONAL SECURITIES OR SECURITIES ON CREDIT. regulations under which it is issued, rather than from the lan- guage in which it is couched. Those conditions and regulations do not appear to contemplate the transfer of money orders by the payee — and, if payment be made through a bank or other third party, it is as to the payee's agent ; hence, whatever cus- tom there may be for payees' to pass orders by mere delivery to third parties, such custom cannot confer negotiability (c), and therefore a hondfide transferee for value of a money order takes no better title than the person from whom he received it (d), A money order, as we have seen, may be crossed ; when it is so, payment will only be made to the bank to which it is crossed, but the payee's signature is not required. It is not altogether clear whether ss. 2, 3 of the Crossed Cheques' Act (e) may not cover money orders issued by the Post Office ; we appre- hend that such orders are not within those sections (/), and therefore not within the Act ; consequently the effect of crossing a money order must be solely determined by the regulations under which the same is allowed by the Post Office. We may conclude these observations by allusion to a recent County Court case, the facts of which were these : — A post office order made payable to A. and B., solicitors, was stolen by their clerk, C, who forged the signature A. & Co. C. then requested D. to change the order, which she bond fide did; D. then paid the order into her banker's and they got it cashed by the Post Office. In an action by A. and B. to recover the amount of the order from D., the learned judge decided in favour of the defendant, on the ground — 1st, that a post office order is a nego- tiable bUl of exchange, the conditions on the back not being sufficient to make it a conditional order ; 2nd, that, being a bill of exchange within the Stamp Act, it could not be sued upon with- out being duly stamped (g). The first of these grounds is in our view untenable (h) ; the second may perhaps be maintained (i). (c) Post, chap, xxvii. diteh v. Franklin, L. R. 3 C. P. D. 377. (d) Ihid. ; post, chap. xzix. {g) Evans and Anr. v. Smith, S. J., (e) 39 & 40 Vict. o. 81. vol. xxii.. No. 28, p. 651. (/) As to the iueaning of " Persons," (h) Ante, pp. 55, 56. see Guardians of St. Leonard, Shore- (i) Ante, pp. 56, 57. POST OFFICE MONEY ORDERS, 59 In the above case there was evidence that a post office would pay a bank whether the signature (Jc) were real, fictitious, or absent, and, therefore, it was considered unnecessary for D. to trace her title through the forgery. We cannot subscribe to that doc- trine. TheTost Office may, indeed, under its special regulations, be exonerated from liability for payment on a forged order ; but how could the Bank or D., when there is an actual forgery, be heard to say that they do not claim through the forgery ? They claim through an instrument, a material part of which has been forged; it is impossible to disintegrate the forgery from the instrument; therefore the claim is really through a forged instru- ment, and, as such, both the bank and D. should be held liable either to the remitter or to the correct payee, on principles we have already explained (I). {k) As to wiiong description of payee, {l) Ante, pp. 21, 22. see G-ordon v. Strange, 1 Ex. 477. 60 CHAPTEE X. BONDS AND POST OBITS. A BOND is a specialty or deed-poll, by which a person hinds himself and his representatives to perform or forbear from some given act towards some other person. A deed-poll is an instru- ment in writing, sealed and delivered by a party or the parties thereto on one side only, and is opposed to an indenture or deed inter partes, which is a writing sealed and delivered by the parties thereto on both sides (a). The party delivering a bond is called the obligor ; the party to whom the obligor becomes bound — the obligee. A bond, being a species of deed, possesses the following attri- butes : — 1st, It merges or extinguishes a simple contract, whether verbal or in writing not under seal, with which it is co-extensive. Thus, if a debtor give his creditor an I U and then a bond for one and the same debt, the two instruments varying only in form and degree of solemnity, the creditor can no longer sue on the I U, but must bring his action on the covenant (b); 2nd, it works an estoppel — ^that is, the grantor or obligor and other executing parties and their representatives are not, in the absence of mistake (c), allowed to dispute the facts witnessed or recited by the deed, or offer evidence to contradict them {d) ; 3rd, it imports a consideration — that is, a party cannot escape the obligation of the agreement by showing he received no valuable consideration therefor, though he may by showing there (a) Co. Litt. 229a ; 36J, 36a. Simpson's Case, L, R 9, Eq. 597. (6) Price v. Moulton, 20 L. J. C. P. {d) Laniaon v. Tremere, 1 A. & E. 102. 792 ; Duchess of Kingston's Case, Notes (c) Brooke v. Hames, L. K. 6 Eq. 25; II. Sm. L. 6, 7th ed., 777. BONDS AND POST OBITS. 61 was an illegal or immoral consideration (e) ; 4tli, it can vest pro- perty in goods and chattels personal, without delivery of the possession (/) ; 5th, it may be sued upon at any time within twenty years from an actionable breach of one of its covenants, or from an acknowledgment in writing signed by the party liable or his agent, of a part payment or satisfaction on account of principal or interest (g), whereas a simple contract can only be sued upon within six years from the time the right of action accrued (h) ; 6th (lastly), it cannot, before breach of its cove- nants, be discharged except by due performance of its terms, or by an instrument of equal or higher solemnity, but after breach it may be discharged by accord and satisfaction, as verbally or otherwise agreed by the parties (i). Through the foregoing attributes of a deed a bond-creditor enjoys several advantages over a simple contract creditor — the chief value of a security under seal, as compared with a security not under seal, consisting in its superiority as an instrument of evidence, and in the more extended interval during which it keeps a right of action alive. In other respects the two classes of creditors are now on the same footing. Thus, in the administration of a bankrupt (k) or deceased (l) debtor's estate, specialty have no priority over simple contract debts, but both are paid pari passu. Again, a security on property may be created by writing under seal, or not under seal, and if well created, will be equally effectual by either in- strument ; but in many cases, as we shall hereafter see, a deed is necessary to the creation of such a security (m). Bonds are of two kinds, viz., — 1, Simple Bonds; 2, Double Bonds. A simple bond binds the obligor to the per- formance of a given act absolutely, e.g., payment of £1,000 on a given day. A double bond binds the obligor to the payment of (e) Irons v. Smallpieoe, 2 B. & A. c. 97, s. 9 ; Batley v. Faulkner, 3 B. & 551 ; Collins v. Blantern, 2 Wils. 347 ; A 288 ; post, chap. xxxi. Smith V. Sorby, L. R. 3 Q. B. D. 552. (») Peytoe's Case, 6 Rep. 77; Preston (/) Ward U Audland, 16 M. & W. 862. v. Christmas, 2 Wils. 86 ; post chap xxxi (ff) 3 & 4 WiU. IV. V 42, SB. 3, 5 ; (h) 32 & 33 Vict. c. 71, s. 32. post, chap. xvii. (l) 32 & 33 Vict. c. 46, s. 1. (h) 21 Jac. 1. 0. 16, s. 3; 19 & 20 Vict. (m) See post, chaps, xvii., xx., xxvii. 62 PERSONAL SECURITIES OR SECURITIES ON CREDIT. a given sum of money, called the penalty, in case a given act is or is not performed, e.g., payment of £2,000 if the obligor shall or shall not carry on a particular trade within defined limits (w). If the given act upon which the penalty is conditioned he the payment of a sum of money, the penalty is usually twice the amount of such sum. Thus, a bond for £2,000 would be given to secure payment of £1,000. It is only in form that the obligee on such a double bond is liable to the penalty ; he can at any time discharge the obligation by performing the specified act, and if he be sued on the bond, not the amoimt of the penalty, but either damages for the actual injury sustained or the siun secured (if such there be), interest and costs can only be re- covered against him (o). Formerly it was otherwise at Common Law, but now, even independently of the statutes empowering legal tribunals to grant relief {p), the universal adoption by the Judicature Act of equitable doctrines renders it impossible to enforce any civil claim in the nature of a penalty {g). By a penalty, as here spoken of, is meant a sum of money merely intended to secure the performance of an agreement, not a sum agreed upon by the parties as liquidated damages or the price for doing, or refraining from doing, some particular act, in which case such sum would be recoverable (r). There are, notwithstanding, several good reasons for still employing double bonds. Thus, as a general rule, no sum ■ beyond the penalty can be recovered for principal and ia- terest (s), though it is otherwise if the same be secured by a mortgage (i), or if damage to a greater amount be sustained {u), (n) Forrest v. Elwes, i Ves. 492. 436 ; In re Newman ; ex pwrte Capper, (o) Sloman v. Walter, 1 Bro. C. 0. L. K. 4 Ch. D. 124 ; Magee v. Lavell, 478 ; Peachey v. the Duke of Somerset, L. R 9 0. P. 107 ; Parfitt v. Chambre, 1 Stra. 447 ; Thompson v. Hudson, L. L. E. 15 Eq. 36 ; Lea v. Whitater, L. E. 4 H. L. 15. R. 8 C. P. 70 ; Jones v. Heavens, L.R. (p) 8 & 9 Will. IIL c. 11, s. 8 ; 4 & 4 Ch. D. 636. 6 Anne, c. 16, ss. 12, 13 ; 23 & 24 Vict. (s) White v. Sealy, Doug. 49 ; Tew o. 126, s. 25 ; 3 & 4 Will. IV. c. 42, as. v. Lord Wintertou, 3 Bro. C. C. 489. 16, 18. (t) Clarke v. Lord Abingdon, 17 Ves. (?) 36 & 37 Vict. v;. 66, s. 25, subs. 106. 11- («) DuvaU V. Terry, Show. P. C. 15 ; (r) French v. Macale, 2 D. & War. Lord Lonsdale v. Church, 2 T. R 388. 274 ; Eolfe v. Peterson, 2 Bro. P. C. BONDS AND POST OBITS. 63 or if, by the special agreement of the parties, the interest is devoted to some particular purposes (x). Again, in an action on a hond conditioned for the performance of any covenants or agreements other than for the payment of a single lesser sum of money, judgment may be given for the actual damages sustained, and may also be entered up for the full penalty as security against future breaches (y). Thus, on breach of a bond for £2,000, conditioned for the payment of £1,000 by monthly instalments of £100, by defendant failing to pay an instalment, the plaintiff may have judgment and damages and costs for the actual breach, and also judgment for £2,000, on which execution -will be stayed on defendant paying the actual damages and costs into court (z). It is to be observed that the 4 & 5 Anne, c. 16, and the 23 & 24 Yict. c. 126, do not extend to such bonds, which are solely governed by 8 & 9 Will. III. ell (a). Bonds, whether single or double, may be absolute or con- tingent (6). By an absolute bond the obligee is bound to perform a given act unconditionally — e.g., a single or double bond for payment of £1,000 on a given day. By a contingent bond the obligee is bound to perform a given act on the hap- pening of an uncertain event, e.g., a single or double bond for payment of £1,000 if a certain trade should be carried on within prescribed limits. When the event upon which a contingent bond depends is the death or partly the death of a given person, such bond is termed a post-obit. Thus, a bond that the obligee shall pay £1,000 out of the property to which he may succeed by the will or on the intestacy of a given person is a post-obit (c). In the case put, the obligee has a mere expectancy in the pro- perty in question, but the obligation wUl, if that expectancy be realised, become as binding as if he had a vested interest, e.g., as a bond that the obligee shall pay £1,000 out of property to which he is entitled in remainder. {x) Mathews v. Keble, L. K. 3 Ch. (o) Ilnd. 691 ; L. K. 4 Eq. 467. (5) Beckham v. Drake, 2 H. L. Ca. (y) 8 & 9 Wm. III., c. 11, s. 8. 579, 598, 628. (z) Preston v. Dama, L. E. 8 Ex. 19; (c) For the form of a post-obit, see Smith V. Bond, Wms. Saunds. U. Hughes' Concise Conv. 486, 2nd. ed. 64 PERSONAL SECURITIES OR SECURITIES ON CREDIT. The law is now well settled that in the complete ahsence of fraud and unconscionable dealing, post-obits are a perfectly valid kind of security, and they will have priority over subse- quent settlements made by the obligor inter vivos (d) ; nor can they be any longer impeached merely on the ground of under value (e). As, however, it is generally with young expectants, who may be easily imposed upon, that unfair and catching bargains are made through post-obits, the Court will look vigilantly at all such transactions, and set aside, on payment by the obligee of the actual sum advanced and interest thereon at 5 per cent., anything and everything which in the least savours of fraud either actual or constructive (/). Under the Infants' Relief Act, 1874 (g), the contracts of infants for repayment of money lent, whether by special or simple contract, are rendered absolutely void and incapable of confirmation (h). {d) Adames k Hallett, L. E. 6 Eq. Ch. 665; L. R 11 Eq. 266; MiUer?;. 468. . Coot, L. E. 10 Eq. 641 ; Howley v. (e) 31 & 32 Vict. o. 4, Webster -e. Cook, Ir. E. 8 Eq. 570. Cook, L. E. 2 Ch. 542. (?) 37 & 38 Vict. o. 62. (/) Chesterfield v. Janssen, 2 Ves. {h) Ike paHe Lynch, L. E. 2 Ch. D. 157; Beynon v. Cook, L. E. 10 Ch. 227; ex pa/rte Xibble ; irere Onslow, L. 389 ; Earl of Aylesbury v. Morris, L. E. 10 Ch. 373 ; Coxhead v, Mullis, L. E. 8 Ch. 484; Tyler I!. Yates, L. E. 6 E. 3 C. P. D. 439. 65 CHAPTER XI. EXCHEQUER BILLS, EXCHEQUER BONDS, AND TREASURY BILLS. "We have next to advert to the securities upon which the Government of this country borrows money (a). The expense of the public service is defrayed out of the proceeds of the various taxes ; once in each year the Chancellor of the Ex- chequer presents an estimate to the House of Commons of the probable expenditure and revenue of the ensuing twelvemonth, and according to the calculation of the budget so presented taxation is increased or diminished, so as to balance the debit and credit sides of the account. Income from taxation is only gradually collected, and cannot therefore supply a direct fund to meet the necessity of an immediate outlay ; to provide for such an exigency the Government is specially empowered by Acts of Parliament passed pro re natd, to obtain loans to ■ a given amount. The mode in which such loans are raised is by the issue of three classes of instruments, termed, respectively, — Exchequer Bills, Exchequer Bonds, and Treasury Bills. An Exchequer BiU is an instrument in writing, securing payment of a given sum of money with interest thereon, at a certain rate to bearer or to a certain person, issued by the Commissioners of Her Majesty's Treasury in pursuance of a special Act of Parlia- ment, authorising them so to raise money, and is of the following form : — No. £ . By virtue of an Act for raising the sum of ■£• , by Exchequer bills, for the (a) As to the application of tie term Introd., and post, chap. xxxv. "Securities" to the Funds,, see Ante, W 66 PERSONAL SECURITIES OR SECURITIES ON CREDIT. service of the year , this bill entitles , or order, to one thousand pounds, and interest after the rate of twopence-halfpenny per centum per diem, payable out of the and this bill is to be current and pass in any of the public revenues, aids, taxes, or supplies, or to the account of Her Majesty's Exchequer at the Bank of England, after the day of Dated at the Exchequer this day of . If the blank is not filled up, this bill will be paid to bearer. The cheques must not be cut off. The issue, payment, and discharge of Exchequer bills are regu- lated by the Exchequer Bills' and Bonds' Act, 1866 (6), the Sinking Fund Act, 1875 (c), and the Treasury Bills' Act, 1877 (d), by the first of which enactments all former legislation of a similar character is superseded (e). In future the Commis- sioners of Her Majesty's Treasury, when authorised by statute to raise money on Exchequer bills, may, by warrant under their hands, or under the hands of any two of them, countersigned by the Comptroller and Auditor- General, direct that Exchequer bills, with coupons for interest thereon, for any period not ex- ceeding five years from date thereof, be made out at the Bank of England (/). Every Exchequer bill shall be signed by the Comptroller and Auditor-General in his own name, but no such bills shall be signed or put into circulation until a notice of the authority so to sign, under the Act of 1866, has been given in the " London Gazette " (g). To prevent imposition, the Bank of England and the Comptroller and Auditor-General are each to retain a counterfoil of every Exchequer bill issued (h). The interest on Exchequer bills is to be at such rate not ex- ceeding five pounds ten shillings per cent, per annum, as the Treasury may from time to time determine, and is to be payable at the Bank of England half-yearly (i). The Bank of England is to issue the Exchequer bills ordered to the person or officer (J) 29 & 30 Vict. 0. 25. (/) Ibid., s. 3. (e) 38 & 89 Vict. c. 45. (g) Ibid., s. 12. {d) 40 Vict. c. 2. (A) Ibid., s. 4. (e) 29 & 30 Vict. o. 25, s. 1. (i) Ibid., a. 5. EXCHEQUER BILLS, BONDS, AND TREASURY BILLS. 67 named in the Treasury warrant, who is chargeable therewith (k); the moneys raised on such bills are to be carried to the account of the Consolidated Fund (I). Exchequer bills are charged upon the Consolidated Fund, but in certain cases both principal and interest are to be paid out of the permanent annual charge for the National Debt (m). Not later than ten days prior to the expiration of each twelve months from the respective dates ef Exchequer bills during their legal currency, the Treasury are to give notice in the " London Gazette " of the day or days on which claim for payment, and payment should and shall be made by and to the holders of such bills, of the principal moneys therein contained ; such payment shall be at the Bank of England, and if not duly claimed, the bills not so paid off shall have legal currency for the next following twelve months, and so on from year to year until so paid off, or exchanged for new bills ; but the holders are not entitled to claim payment at any interyal between the times fixed by such yearly notices (though the Treasury may, at any time, direct such payment), except that, during the last six months of every year from the date during which Exchequer bills have legal currency, they are to pass cur- rent for payment of Customs or any duties whatsoever, and interest due to the day of such payment is to be allowed to the persons paying the same, but is thenceforth to cease, and such persons are to write their names and the date of payment upon such bills (n). The Treasury may issue Exchequer or Treasury bills during any financial year to such an amount as win replace the principal money of bills paid off or paid in for duties during that financial year, and may issue new Exchequer bills to replace other Exchequer bills with exhausted coupons ; notice of such issue shall be given in the " London Gazette " not later than twenty-one days prior to the day on which the last half-yearly coupons for interest on such bills shall become due, and the interest on such bills, if not exchanged, W ^^"i-> s- 6. (m) S. 2, 38 & 39 Vict. o. 45. (0 Ibid., B. 7. (») S. 9-11, 29 & 30 Vict. u. 25. f2 68 PERSONAL SECURITIES OR SECURITIES ON CREDIT. shall cease on the day of exchange, and the principal moneys of such bills when thereafter presented for payment, shall be paid off in money (o). The Treasury may issue new Exchequer bills to replace any bills accidentally defaced, and, on the certificate of the Chief Baron and other the Barons of the Exchequer Division of the High Court, or of any of them, that they or he is satisfied by the oath or oaths of one or more credible witnesses, that any Exchequer bill has by casualty or mischance been lost, burnt, or otherwise destroyed, may caitse the money due thereon to be paid off in like manner as if the original bill were brought in to be paid off, provided the person so receiving payment, give security to the Queen to repay the amount so paid, in case the said bill be thereafter produced (p). Exchequer bills when discharged and paid off are to be can- celled and made void at the Bank of England, and that body is empowered to advance or lend to Her Majesty on the credit of Exchequer bills any sum or sums not exceeding in the whole the principal sums contained in such bills. Exchequer bonds were first introduced in the year 1853 by an " Act for redeeming or commuting the annuity payable to the South Sea Company, and certain annuities of three pounds per centum per annum, and for creating new annuities of three pounds ten shillings per centum per annum, and two pounds ten shillings per centum per annum, and issuing Exchequer bonds." The following is the form in which bonds were issued under the above statute : — No. Exchequer Bond. £ By virtue of an Act of the Session, holden in the 16th and and 17th years of Her Majesty Queen Victoria, chapter Twenty- three, and of a Treasury warrant, bearing date the 22nd July, 1853. This bond entitles the bearer to £ carrying interest at the rate of £2 15s. per centum per annum, payable half- Co) Ibid., SB. 12—14. (p) Ibid., s. 16. EXCHEQUEE BILLS, BQNDB, AND TBEASUBY BILLS. 69 yearly, on the 1st day of March and 1st day of September, from the date hereof, up to the 1st day of September, 1864, inclusive, and thenceforth at tho rate of £2 10s. 3d per centum per annum, payable half-yearly, in like manner, until and including the 1st day of September, 1894, and, thereafter, is subject to redemption on payment of such principal sum of £ , at the option of the Commissioners of Her Majesty's Treasury, so soon as Parliament shall have made due provision in respect thereof; and until such redemption, such principal sum of £ will continue to carry interest at the said rate ef £2 10s. per centum per annum. The several sums in respect of interest, mentioned in the annexed eertiiicates, are transfer- able by delivery of such respective certificates, and will be payable to the persons producing and delivering the same at the Bank of England. Dated at the ExcheeLuer, at Westminster, this 9th day of June, 1863. N.B. — The cheques must not be cut off. Signed in the 1 presence of J Certificates for Interest. No. A or C £ Interest Certificate on Exchequer Bond for £ Per Act 16 Vict., chap. 33. This Certificate entitles the Bearer to interest at per centum per annum, payable at the Bank of England, for a half-year ending 18 . MONTEAjGLE {q). In the year 1854 an Act was passed for raising the sum of six millions by Exchequer bonds and Exchequer bill's, and since that time Exchequer bonds have been issued for large amounts under various Acts of Parliament. The Exchequer bonds so raised resemble Exchequer bills, and in many particulars are governed by the same rules ; thus, the provisions in the Ex- (2) " London Gazette," 1853, III. 2275—2276. 70 PEESONAL SECURITIES OR SECURITIES ON CREDIT. chequer Bills' and Bonds' Act which regulate the preparation and issue of Exchequer bills and the rate of interest thereon, which provide for the re-issue or payment of defaced or lost bills, and the cancellation of discharged bills, which enable the Treasury to pay off bills at any time, which make old outstanding bills a charge on the Consolidated Fund, and which empower the Bank of England to advance money on the credit of Exchequer bills, are applicable to Exchequer bonds, mutatis mutandis (r). On the other hand. Exchequer bonds are made payable to bearer simply, and may or may not be charged on the Consolidated Fund, according to the terms of the particular enactment authorising their issue, which also determines the time when the principal moneys on such bonds should be discharged (s) ; further. Exchequer bonds are not payable for duties, nor is the Treasury empowered to issue new Exchequer bonds for bonds, the coupons of which are exhausted, unless specially authorised, as is the case with regard to the bonds issued under 16 Vict, c 23, and 16 & 17 Vict. c. 132 (f). Moreover, the Treasury may from time to time by warrant under their hands to be pub- lished in the " London Gazette," provide for the registration of any such Exchequer bonds as may be delivered up by the holders thereof for that purpose, and for the delivery of certificates of such registration in lieu thereof, which shall be transferable by entries, in a register provided for the purpose. In all the above particulars Exchequer bonds differ from Exchequer bills. Treasury biUs were introduced by the Treasury Bills' Act, 1877 (u), M'hich empowers the Treasury to issue such bills when authorised by any Act of Parliament to raise money by the issue of Exchequer bills or of Treasury bills (x). Such Treasury bills are to be for the payment of the principal sum named therein, in the manner and at the date therein mentioned, which latter must not be less than three, nor more than twelve months from date of the biU ; interest is to be payable at such rate and (r) S. 26, 29 & 30 Vict. o. 25. (t) S. 27, 29 & 30 Viot. o. 25. (s) See Si & 35 Viot. o. 52 ; 39 Vict. {u) 40 Vict. c. 2. '■■■ 1- {x) Ibid., s. 3. EXCHEQUER BILLS, BONDS, AND TREASURY BILLS. 71 in such manner as the Treasury shall direct {y). The following is the form of a Treasury Bill : — A. 0. 1. Due, June 28, 1877. A. 0. 1. £ £ By virtue of an Act 40 Vict. c. 2. London,'March 28, 1877. This Treasury Bill entitles* or order to payment of ■ pounds at the Bank of England out of the Consolidated Fund, on the 28th June, 1877. In pursuance of — Signed Comptroller and Auditor-General. * If this blank be not filled up, the bill will be paid to bearer. .All money raised by the issue of any Treasury bill is to be paid into the ExchecLuer ; and the principal money and interest expressed in any Treasury bill {z) to be payable shall be charged on Ihe Consolidated Fund. The Treasury may issue Exchequer bills or Treasury bills in lieu of bills paid off during the same financial year (a) ; the mode of issuing Treasury bills is similar to that of issuing Exchequer bills (6). The Treasury may from time to time make regulations as to the preparation, issue, and cancellation of and prevention of fraud as to Treasury bills ; such regulations are to be laid before both Houses of Parliament, within one month after they are made, if Parliament be then sitting, or, if not, within one month after the then next meeting of Parliament (c). The Bank of England may lend to Her Majesty, upon the credit of Treasury bills, any sum or sums, not exceed- ing in the whole the principal sums named in such bills (d). Exchequer bonds are purely negotiable instruments ; so are Exchequer bills and Treasury bills, so long as their blanks are not filled up, but if they be filled up the bills are only then (y) Ibid., s. 4. (6) Hid., b. 7. (z) Ibid., s. 5. (c) Ihid., a. 8. (a) Ibid., s. 6. (d) Ibid., s. 12. 72 PERSONAL SECURITIES OR SECURITIES ON CREDIT. payable to the person named (e). The three classes of securities are subject to the general lien of bankers, unless expressly deposited for a particular purpose, as, e. g., to be exchanged for new securities (/) ; moreover, bankers who horid fide mak? advances on the deposit of forged bills or bonds, may recoveir back the amount advanced as soon as such bills or bonds are re- pudiated at the Exchequer {g). ; As the State has frequently to borrow money for the pubfic service of this country, so also has it frequently to borrow money for the government of India. The usual mode in wh ch such loans are effected is by special Act of Parliament, empo\\ier- ing the Secretary of State in Council for India to raise moiey to a given amount by the creation and issue of bills, bonds, pd debentures under the hands of two members of the Council of India, and countersigned by such Secretary of State, or by [his Under-Secretary or Assistant Under-Secretary ; the bonds ind debentures so issued are charged upon the revenues of Inpia, and are to be paid off at par at the times mentioned therion, with interest payable half-yearly, either at the Treasury of jthe Secretary of State in Council in London, or at the Bant of England. Such bonds and debentures, and the coupons for interest thereon, are made transferable by delivery, and are purely negotiable instruments ; power is given to issue new bonds and debentures, and to pay off the principal moneys due in the original bonds and debentures Qi). («) Wookey v. Pole, 4 B. & Aid. 1. (g) Bank of England v. Tomkins, 6 (/) Brandao v. Bainett, 12 CI. & F. Jur. 348. 787. W 40 & 41 Vict. c. 51. 73 CHAPTER XII. FOEEIGN GOVERNMENT MONEY SECURITIES. Foreign governments borrow money to a large extent in England; the securities issued upon such transactions claim accordingly some attention. Foreign loans are submitted to the British public through some great house or bank having an establishment in this country ; the members of such house or bank are the avowed agents of the foreign government, and as such are not liable for acts done in that capacity ; hence, any claim on a foreign government security can only avail against the principal or foreign government (a). Between the latter, and the private individuals from whom it borrows in England, a relationship is constituted which confers a moral right to the fulfilment of the engagement entered into ; but as the sovereign power of a nation or independent political society can owe no legal obligation (&), it follows that the above relationship does not amount to a legal contract and does not create a legal right against the foreign government, to whose bona fides and honesty alone, therefore, the lender must look for satisfaction of his claim. The terms of a foreign loan may be that the debt thereby incurred should become part of the national or funded debt of the country ; or that the debt thereby incurred should bear interest at a certain rate, and be paid off at a certain time. In the iirst instance the lender acquires a right of property in the dividends payable on the amount of funded debt assigned to (a) Twycross v. Dreyfus, L. K. 5 Ch. (6) Austin's Jurisprudence, Leot. VI. D. 605. 74 PERSONAL SECURITIES OR SECURITIES ON CREDIT. him, and occupies a position analogous to that of a person in whose name English consols are standing; in the second instance, the lender acquires a right to repayment of the advance on the particular terms stipulated, and occupies a posi- tion analogous to that of the holder of an English Exchequer bill or Exchequer bond (c). It is to the securities issued in the latter instance that we have now to address ourselves ; and these are usually in the form of bonds or scrip, entitling the holder to bonds on the performance of certain conditions {d). The frame of such instruments varies greatly in different cases, but most frequently their purport is that the sovereign or government of the State issuing the loan undertakes to pay to the holder for the time being, or to bearer, the amount specified on the face of the instrument. Whether a bond or scrip so issued be negotiable depends in the first place on the law of the foreign country issuing the loan, but, if there be no evidence upon that point, the question is determined by the general custom of the money-market in dealing with such instru- ments (e). Hence, bonds of a foreign government, payable to bearer, and by custom transferable by delivery, are negotiable instruments (/); so, scrip of a foreign government promising, after all instalments have been paid up thereon, to give bearer a bond for the amount, with interest, is by the custom of all European stock-markets a negotiable instrument, and therefore passes by mere delivery to a bond fide holder for value (g). If a foreign bond purport to be payable to bearer, yet by custom is never sold without an accompanying certificate, such bond is not negotiable per se, and if transferred without the certificate, is taken by the transferee, subject to the equities (h) attaching to it in the hands of the transferor (i). It would seem that even (c) Ante, pp. 65, 68. W. 171 ; Heseltine v. Siggers, 18 L. J. (d) Ante, p. 60. Ex. 166 ; Jones v. Peppercorne, 28 L. (e) Smith v. Weguelin, L. R. 8 Eq. J. Ch. 158. 212, 213 ; The King of Spain v. Mac- {gi) Goodwin v. Robarts, L. R. 1 App. hado, 4 RusB. 225. Cas. 176. (/).Gorgier v. MieviUe, 3 B. & C. (A) Po««, chaps, xxvii., xxix. 45 ; Atty.-Gen. v. Bowens, 4 M. & (j) Laing v. Smyth, 7 Bing. 284. FOREIGN GOVERNMENT MONEY SECURITIES. 75 a custom of recent origin to pass foreign securities by mere delivery is sufficient to establish their negotiability ; whereas in the case of inland securities a custom to be effectual for that pur- pose is required by the law merchant to have extended over a considerable period of time (k). It has, however, been very recently held that scrip certificates of the following or similar form : — " This is to certify that the sum of £10 per share has been paid in respect of the above shares (being £5 per share) on account of capital, and £5 per share on account of pre- mium, and that after the payment of the undermentioned further instalments to the London Joint- Stock Bank, Princes Street, London, the bearer hereof will be entitled to be registered as the holder of ten shares of £20 each in the Anglo-Egyptian Banking Company, Limited," such certificates bearing the several dates when the moneys were paid, and containing bankers' receipts in blank for instalments as they became due, and being, in fact, supposed negotiable, and being so treated by the finan- cial world to which they had been issued from fifteen to thirty years by various companies, passed by mere delivery as negoti- able instruments (I). But scrip certificates transferable to bearer do not pass shares in a company which are required by Act of Parliament to be transferred by deed, and alteration in the register (m). An English court has no jurisdiction to enforce the contracts of a foreign government against the property of such govern- ment in England (n), nor to attach the proceeds of goods in the hands of the agents of a foreign government, which were in- tended to be applied in payment of bonds issued by such govern- ment in England (o). But one of our courts having a trust fund under its control, may well proceed to administer that fund, even although a foreign government might be interested in it, and (h) Crouch v. Credit Foncier of Eng- Wharves and Warehouses Co., L. E. 6, land, L. R. 8 Q. B. Ch. 655. [1) EumbaU v. Metropolitan Bank, (m) Smith v. WegueUn, uhi supra. L. R. 2 Q. B. D. 194. (o). Twycross v. Dreyfus, ubi supra; (m) McEuen v. West London Vavasseurti. Krupp, L. R. 9 Ch. D. 351. 76 PERSONAL SECURITIES OR SECURITIES ON CREDIT. might not be before the court or subject to its jurisdiction (p) ; so, whilst our courts do not entertain an action against a foreign government, on a contract entered into between such government and an English subject, yet a foreign State recog- nized by Her Majesty's government may sue in England in its own name as so recognized (q). (p) Morgan «. Larivibre, L. E. 7 H. ner, L. R. 2 Oh. 582 ; Hullett v. King L. 423. of Spain, 2 BU. N. S. 31. (a) United States of America v. Wag- • 77 CHAPTER XIII. LIFE POLICIES. The contract, commonly called life assurance, is a contract to pay a certain sum of money on the death of a person in con- sideration of the due payment of certain annual premiums during his life (a). The contract may, however, depend on any event contingent upon human life ; thus, a certain sum may he agreed to be paid on a specified birth in consideration of certain annual payments. The contract itself is called a policy of in- surance ; the consideration or annual payment — the premium ; the person who receives the premium and undertakes the liability of payment on the death or the event — the assurer or insurer ; the person who pays the premium, and to whom or to whose representatives the assurers are to pay the amount of the policy, the assured or insured; and the contingency issued against — the risk. If the insurers be a company completely registered under the Company's Registration Act, 1844 (b), the policy must be by deed signed by two of the directors ; but, if the company be registered under the Company's Act, 1862 (c), such signature is not required, and contracts with such companies may be by simple writing, or by deed, as they might be, were they between private persons only, and, if required to be signed, may be signed by any person acting under the express or im- plied authority of the Company. The formation of future, and the conduct, amalgamation, and winding-up of existing and {a) Dalty v. India and London Life formalities be omitted. Smith v. The Assurance Co., 15 0. B. 365 ; 24 L. J. C. Hull Glass Co., 8 0. B. 668 ; see also P. 2. Xenos v. Wickham, L. E. 2 H. L. 296. (6) 7 & 8 Vict. c. 110, Bs. 44—46. (c) 25 & 26 Vict. c. 89 ; 30 & 31 Contracts are available against but not Viot. c. 131, s. 37. by the Company, though the prescribed 78 PERSONAL SECURITIES OR SECURITIES ON CBEDIT. " future Insurance Companies are governed by the Life Assur- ance Companies' Acts, 1870 — 72 (d). The following is a form of policy : — This Policy of Assurance mtnesseth that Whereas being interested in the life of , and being desirous of making an assurance thereon for , and having subscribed, or caused to be subscribed, and delivered into this office, a declaration as the basis of the said assurance, setting forth certain particulars and statements therein mentioned, and having paid to the Life Insurance Company the sum of as a consideration for the assurance of the sum undermentioned for one year, from the day of 18 . Now know all men by these Presents, That in case the said shall die within the term of one year as above set forth, the stock and funds of the Company shall be liable to pay to the said executors, administrators, or assigns within three months after the demise of the said shall have been duly certified to the Company, the sum of . And it is hereby further agreed, that this policy may be continued in force from YEAE to YEAE until the expiration of the term first above-mentioned, provided the said assured shaU duly pay, or cause to be paid, to the Company on or before the day of next ensuing, the sum of , and the like sum annually, on or before the day aforesaid, which annual payments shall be ac- cepted, at every such period, as a full consideration of such assurance. Provided also. That this policy shall not become void, in consequence of non-payment of the said premium, until the expiration of thirty days from the said day of , and in case the said life assured shall die with- in such thirty days in any year, the premium due' shall be deducted from the principal sum to be paid by the Company. Provided nevertheless, That should the life assured depart (d) 33 k 34 Vict. c. 61 ; 34 & 35 Vict. u. 58 ; 35 & 36 Vict. c. 41. LIFE POLICIES. 79 beyond the limits of Europe, die upon the seas (except in pass- ing, during peace, from any part of Europe to any other part of Europe), or engage in any military or naval service, then this policy shall be void, and the premiums already paid shall be retained by the company. In Witness whereof we (three of the directors for the said Company), have hereunto set our hands, this day of 18 . Entered (e). The material parts of the above are :— 1. The description of the assured and the life assured. 2. The declaration upon which the contract is founded. 3. The time for which the assurance remains in force. 4. The renewal of the policy from year to year by annual premiums. 6. The avoidance of the policy by certain contingencies. 6. The subscription by the directors. 1st. By 14 Geo. Ill, c. 48, s. 2, the names of all persons in- terested in the policy must be inserted therein, otherwise the same will be unlawful. Accordingly a policy effected on the life of a married woman, and expressed to be made between her (described as a married woman) and the Company, but in reality as a security to a third party who had undertaken to indemnify her trustees (she being a minor) for an advance made by them to the husband, was held void as not containing the name of the husband, or other person interested (/). So, it is not enough that the name of the person interested appear in the policy, unless such person be described as so interested {g). 2nd. When a person applies to an Insurance Company for the purpose of effecting a life policy, he is furnished with a list of questions concerning the age, health, habits, and general circum- stances of the life intended to be assured. These questions, and (e) Pelican Life Insurance Company, 622. established 1797. (g) Hodson o. Observer Life Assur- (/) Evans v. Biguold, L. R. i Q. B. ance Co., 8 El. & Bl. 40. 80 PERSONAL SECURITIES OR SECURITIES ON CREDIT. the answers thereto by the assured, are called the proposal, such proposal, with any accompanying declaration, is incorporated with and forms the basis of the contract. As insurance is an agreement where uberrima fides or the utmost good faith is re- quired, any erroneous statement on the part of the assured in the proposal, or during the negotiations will, in general, vitiate the policy. Thus, even an unintentional mistake will suf&ce to avoid the contract, as if it is said the life assured has never had some disease, when, in fact, the reverse is the truth, although the malady in question is of no material importance (h). If, however, the mis-statement be without fraud, and the risk has never attached, the premiums are recoverable (i). Upon this subject it is important to distinguish between a mere represen- tation and a warranty. If from the form of the proposal, or otherwise, the assured makes a statement amounting to a war- ranty (and no statement can amount to a warranty unless ex- pressly set out, or by reference incorporated in the policy), that statement must be literally true, or else the policy may be avoided (k). If, on the other hand, the statements of the assured are mere representations, it is sufficient that those statements are substantially though not literally true (I). In order to obviate the danger of the contract being set aside by reason of any erroneous statement, some companies issue indisputable policies, or policies which cannot be called in question on account of any unintentional mis-statement ; such policies will, however, be defeated by proof of wilful misrepresentation or fraud (tr). 3rd. The contract may be in force for any stipulated. period,. and, if the death of the person whose life is assured takes place within such period, the Company wiU be liable for the amount . (h) Smith V. Accident Insurance Co., ance Co., L. E. 9 Q. B. 328. L. K. 5 Ex. 302 ; Cazenove v. British (I) Wheelton v. Hardisty, 26 L. J. Q. Equitable Insurance Co., 29 L. J. C. P. B. 265 ; 29 ib. 241 ; Goram v. Sweet- 160 ; London Assurance v. Mansel, ing, Wms. Saund. II. 557 n. W. N. (1879) 37. (m) Benham v. The United Guarantee (i) In re Albert Assurance Co., Cook's and Life Assurance Co., 7 iix. 744 ; Policy, L. K 9 Eq. 703. Wheelton v. Hardisty,' 8 El. & El. 232; (i) Macdonald y. Law Union Insur- Wood v. Dwarris, 11 Ex. 493. LIFE POLICIES. 81 under the policy (n), but not, according to the usual terms, until such death is duly certified (o). The important con- sequence of this latter condition is that the right of action against the company does not accrue from the death, but from due certification thereof, from which period therefore time under the Statute of Limitations begins to run. 4th. By punctual payment of the premium at the day appointed the insurance is annually renewed, so long as the life endures. In default of such payment there are generally thirty additional days, called days of grace, within which the premium is allowed to be paid, either with or without some fine, so as to save a for- feiture of the policy; and in some companies a renewal, or revival of the policy, will be granted even after the lapse of thirty days (p). Actual payment of the premium within the days of grace, or as otherwise specially provided, is absolutely necessary (q), so that if the life drop during the days of grace, and no payment of premium be made witliin that time, the policy becomes forfeited, unless there be a condition that the premium be set off against the sum assured (r). 5th. In most companies, by payment of a fine or higher pre- mium, provision is made for allowing the person whose life is assured to go. beyond Europe or to enter into military or naval service ; and in some cases, where it is highly improbable such person wiU go out of Europe or enter into either of the services, " unchallengeable policies," or policies without the above restric- tions, may be obtained. In addition to these restrictions, " own poUcies," (s) which have not been assigned, are also avoided by the felonious death of the assured, whether by his own hand or by the hands of Justice ; nor does it matter whether or no the contract so provides (t). If, however, the policy be assigned, or if it be a nominee policy, then the felonious death of the life (») Lockyer v. Offley, 1 T. K. 260. (?) Acey v. Fernie, 7 M. & W. 151. (o) Higgins v. Sargent, 2 B. & C. (r) Simpson v. The Accidental Death 348. As to presumption of death, see Assurance Co., 2 C. B. N. S. 257. Pradential Aisurance Co. v. Edmonds, (s) Infra. L. E, 2 App. C;as. 487. (4 Amicable Society v. BoUand, 4 (p) Want V. Bltmt, 12 East, 183. BK. N. S. 194. G 82 PERSONAL SECURITIES OR SECURITIES ON CREDIT. assured will not vitiate the policy in the absence of a stipula- tion to that eifect between the assurer and the assured {u) ; such assignment, however, must be voluntary, and not by mere operation of law as bankruptcy (x). 6th, As to the subscription of the directors see supra, p. 17. Life policies are either " own policies" or " nominee policies." An own policy is an insurance effected by the assured on his own life, and as every one has an indefinite interest in his own life, the policy may be for any amount, and will be enforceable by the assignees of the assured, or, if not assigned, by his execu- tors or administrators (y). A nominee policy is an insurance effected by the assured on the life of some third person, and for such policy to be valid the assured must have an insurable interest in the life assured {z), beyond the amount of which interest he cannot recover on the contract (a). By an insurable, is meant a pecuniary interest (b) ; thus, a creditor has an insur* able interest in the life of his debtor (&) ; so, a trustee has an insurable interest in a life upon which the subject or part of the subject of the trust depends (c) ; so, a wife has an insurable interest in the life of her husband (d) ; on the other hand, a parent, as such, has not an insurable interest in the life of Ms child for his own benefit (6), nor has an expectant devisee, heir, or next of kin an insurable interest in the life of a testator ancestor, or relative («). So, a husband has not an insurable interest in ihe life of his wife (/) — a rule somewhat at variance with the principle of the Common Law — that the wife's separate existence is merged in that of the husband, so that they form but one person in legal contemplation. By the Married Womerfs Property Act, 1870 (g), a married woman may effect a (,^) White V. British Empire Mutual |6) Holford v. Kymer, 10 B. & C. Life Assurance Co., L. R 7 Eq. 394. 724. (x) Stokoe u. Cowan, 30 L. J. Q. B. (c) Tidswell v. Angerstein, Peake 882 ; Jackson v. Foster, 29 L. J. Q, B. N. P. Cas. 151. 8, (d) Eeed v. Eoyal Exchange Assur- {y) Wainwright v. Bland, 1 M. & K. ance Co., Peake, Add. Cas. 70. 481. (e) Cooke -». Eield, 15 Q. B. 460. (js) 14 Geo. III. c. 48, s. 1 ; extended (/) Luoena e. Crawford, 2 Bos. & to Ireland 29 & 30 Vict. o. 42. P. 824. (o) 14 Geo. III. u. 48, s. 3. {g) 33 & 34 Viot. c. 93, s. 10. LIFE POLICIES. 83 policy on her own life, or on that of her husband for her separate use, and a policy so effected, and purporting to have been so effected, shall enure as if made with an unmarried woman. By the same statute a married man may effect a policy on his own life for benefit of his wife or children or any of them ; and a policy so effected, and purporting to have been so effected, shall enure as a trust for the benefit of his wife for her separate use, or for his wife and children or any of them, according to the intention expressed, and shall, so long as any object of the trust continues, be exempt from the control of the husband or his creditors, and shall not form part of his estate. A policy issued after the passing of the Act, in exchange for a policy issued before the passing of the Act, is within this clause (h). A trustee of such policy may be appointed by the Chancery Division of the High Court of Justice or by the County Court judge of the district in which the insurance office is situate, and the receipt of such trustee shall be a good discharge to the com- pany ; but proof that the policy was effected and the premiums paid by the husband to defraud his creditors shall entitle the latter to receive out of the sum secured an amount equal to the premium so paid (i). Where a deceased had effected a policy on his own life for the benefit of his wife and children, without declaring the interests they should take, the Court appointed trustees to hold the policy-monies on the trusts of a strict settlement (Ic). The insurable interest must exist at the time the policy is effected, but it need not continue afterwards ; thus a policy effected by a creditor on the life of his debtor is not cancelled by subsequent payment of the debt (I). Hence, life insurance differs from marine and fire insurance in not being a contract of mere indemnity, so that the insurers on a life policy are liable to pay the amount of the policy, although the insured receive^ full compensation for the risk from other sources. (A) Holt V. Everall, L. R. 2 Ch. D. 6 Ch. T). 127. 266. W Dalby v. India and London Life {i) 33 & 34 Vict. c. 93, B. 10. Assurance Co., 15 C. B. 365 ; 24 L. J. (k) In re MoUar's Policy Trusts, L. K. C. P. 2. a2 84 PERSONAL SECURITIES OR SECURITIES ON CREDIT. In the interesting case of a policy eifected by his creditors on the life of Mr. Pitt, the statesman, Lord Ellenborongh held that the insurers were not liable thereon, as the debts were discharged out of public money by a vote of Parliament ; thus ruling that the contract was. one of pure indemnity (m). This decision, however, has been long overruled, and the law is now beyond dispute, that in such case the insurers are liable («) — their liability being limited by the amount of the insurable interest at the time the contract is entered into, so that in no case can the assured recover a greater amount (o), and if he eifects several policies on the same life he can still only recover the value of his interest in that life (p ) ; thus, where A. and B. entered into a joint bond for £300, and A. effected a policy on B.'s life for the same amount, it was held that the policy was only valid for half the sum secured by the bond, since that was the full interest of A. in B.'s bfe (q). The absence of an insurable interest avoids a policy only as against the insurers, so that if they waive the objection the instrument is valid ; thus, where an insurance company paid the moneys secured by a policy effected by a father on his son's life, in which he had no insurable interest, in the name of the son, but really for his own benefit, it was held that the father having taken out administration was to be preferred to the son's estate (r). Life policies may be divided into — 1. Ordinary policies, or policies under which a given sum is payable to the assured either absolutely, on the lapse of the life assured, such as we have considered, or conditionally, provided that lapse occur within a given time. 2. Endowment policies, or policies under which a given sum is payable on the attainment of a specified age by the life assured, or on the lapse of such life in case the specified age be not attained. 3. Issue policies, or policies under which a given sum is payable on the birth or absence of (m) Grodsall v. Boldero, 9 East, 72; 85. (») Dalby v. The India and London (q) Branford v. Saunders, 25 W. R. Life Assurance Co., 15 C. B. 365. 650. (o) 14 Geo. III. 0. 48, s. 3. (»•) Worthington v. Curtis, L. R. 1 (j)) Hebden v. West, 32 L. J-. Q. B. Ch. D. 419. LIFE POLICIES. 85 issue. Under such an instrument a person having a reversion- ary interest defeasible by the birth or absence of issue may secure himself against such contingency. 4. Survivorship policies, or policies under which a given sum is payable on the decease of one person provided another be then living. 5. An- nuity policies, or policies under which a given annual sum is payable to the survivor of two persons during the remainder of his life. Another division of policies is into (1) participating and (2) non-participating policies, according as it is agreed the assured shall or shall not respectively share in a certain portion of the profits of the company. A share so agreed to be allotted is termed a boniis, and it is commonly stipulated such bonus shall either be added to the sum on the policy or be payable in cash, or be applied in reduction of premium, at the option of the assured. A bonus follows the interest in the policy, so that the person entitled to the latter will also be entitled to the former (s). On the declaration of a bonus the assured acquires a definite right thereto (t), and an apportionment thereof will be enforced from an ascertained surplus (tt). The holder of a participating policy does not become a partner in the company by the mere receipt of bonuses or participation in profits {x). Policies of assurance were not assignable at law until the year 1867. Before that time the assignee of a life policy could not sue thereon in his own name, except in a Court of Equity. By the Policies of Assurance Act, 186*7, any person having at the time of action brought, by assignment or other derivative title, the right in equity to receive and give an effectual dis- charge to the company liable for the moneys secured by the policy, may sue thereon at law, provided a written notice of the date and purport of the assignment has been previously given (s) amy V. Barley, 22 Beav. 619 ; 14 Jur. 929 ; Macdonald v. Irvine, L, Roberts v. Edwards, 9 Jur. N. S. 1219. R. 8 Ch. D. 101. (t) Carlisle v. The Southampton Ely. (x) Re English and Irish Church and Co., 1 Mc. N. & G. 689. University Insurance Society, 1 Hem. (u) In re The London and West- & M. 85 ; Cox ik Hickman, 8 H. L. Cas. minster Mutual Life Assurance Co., 268. 86 PEKSONAL SECURITIES OR SECURITIES ON CREDIT. to the assurance company liable thereunder, at their principal place of business {y). The date of the receipt of such notice is to regulate the priority of all claims under the assignment, and any lond fide payment made in respect of the policy before such receipt is to be valid against the assignee giving notice {z). The principal place of business, where notices of assignment may be given, is to be specified in the policy (a). On the written re- quest of the person, or of his executors or administrators^ giving such notice, and on payment of a fee not exceeding 5s. an insurance company is to deliver an acknowledgment in writing under the hand of one of their priiicipal officers, of the receipt of such notice ; and such acknowledgment, if signed by a person being de jure or de facto such officer, shall be conclusive evi- dence against the company of the receipt of such notice (6). It is to be observed that the above is not a mere enabling statute; it is also disabling. For, whilst an assignee is em- powered to sue at law in his own name on certain conditions, he is prohibited from suing elsewhere on any other conditions. The words of the statute are — " no assignment to be made after the passing of this Act of a policy of life assurance shall confer on the assignee therein named any right to sue for the amount of such policy, or the money thereby secured, until a written notice," &c, (c). Hence a policy of life insurance can no longer, like other choses in action, be the subject of an equitable assign-. ment, so as to give the assignee the right to sue on verbal notice before an equitable tribunal, and for the statutory transfer the assignment must be absolute {d). Accordingly, where S., on effecting certain policies on his- own life, expressly informed the insurance company by letter that the same were to be given to his creditor C. as security for a debt, and then inclosed the policies to C. in a letter requesting him to have an assignment prepared by his solicitor, it was held that, on the death of S. (,y) 30 & 31 Vict, o. 144, sa. 1, 3. (d) Post, p. 309 ; In re Foster, I. R. (z) Ibid., B. 3. 7 Eq. 294. For what was snfficieat (a) Jbid., B. 4. notice of an assignment before the (6) Ibid., s. 6. statute, see AUetson v. Chichester, L. (c) Ibid., B. 3. K 10 C. P. 319. LIFE POLICIES. 87 before any assignment was prepared, the company were justified in refusing to pay the policy moneys to 0. in the absence of S.'s personal representatives, although a receipt in the terms of section 6 had been given by the company acknowledging notice from C.'s solicitor of the death of S, (e). No particular form is required for the assignment of a policy. So long as the provisions of the 30 & 31 Vict, are complied with, the right of the assignee will avail, whether the assign- ment be or be not in writing, and whether, if in writing, that writing be or be not under seal. For a mere assignment without any collateral covenant no more simple form can be devised than that furnished in the schedule to the above Act (/), which may be either indorsed on the policy or contained in a separate instrument (g), duly stamped. Where, besides the assignment, there is a concurrent agreement, it may be convenient to include the whole transaction in a single instrument, and, speaking generally, assignments are usually made by deed. Sometimes the benefit of a policy is transferred by surrender and re-grant ; that is, a new policy is issued on similar terms to the transferee, on delivery up of the original contract. The advantage of such a mode of transfer is perhaps counterbalanced by the danger of its being an act vltra vires (h). The conditions upon which insurance companies make ad- vances on their own policies vary in different institutions. As a rule, no advance will be made in the absence of approved collateral securities until the premiums have been paid for some three or four years, and the policy has thus acquired appreciable value. In some cases, however, an advance is immediately- made on the borrower insuring his life for double the amount in the office advancing, and on entering into a bond, with two sureties, for due payment of the loan. The policy is either assigned to or deposited with the company ; in the former case (e) Crossley v. City of Glasgow Life tors, and assigns, the [within] Policy of Assurance Co., L. K. 4 Ch. D. 421 ; Assurance, granted, &;c. [here describe Spencer v. Clarke, L. E. 9 Ch. D. 137. the policy]. In witness, &c." (/) "I, A. B., of, &c., in consideri- (g) Ibid., s. 5. tion of, &o., do hereby assign unto C. (A) Windus «. Lord Tredegar, 15 L.T. D., of, &0., his executors, administra- N.S.108H.L. See^ost,ppi268,269,274. 88 PERSONAL SECURITIES OR SECURITIES ON CREDIT. there will be a legal, in the latter, an equitable mortgage of the policy (i). A policy of insurance being a chose in action, the priorities of successive assignees or mortgagees will depend on the priority not of their several assignments or mortgages, but of the notices thereof given to the insurance company. Under this rule, many difiScult questions formerly arose under the order and disposition clause in the Bankruptcy Acts as to priority between the general assignee in bankruptcy and a particular assignee (k). For the future, however, no such questions can be raised in England, as it is held that a policy of insurance is a chose in action which does not pass to the trustee in bankruptcy under section 15 of the Act of 1869 (l). Priority of notice by a subsequent equitable mortgagee does not give priority of title over a prior equitable mortgagee having an actual deposit of the policy (m). The relation be- tween an insurance company and the assignee of one of its policies is that of debtor and creditor, not that of trustee and cestwi que trust ; hence, a company cannot exonerate itself as against such assignee by payment into Court of the policy monies under the Trustee Relief Act, unless the monies be sub- ject to a trust, or there have been a statutory assignment under the Judicature Act {n). An assignee, however, by petitioning under the Trustee Belief Act, gives the Court jurisdiction to allow the company their costs as between solicitor and client, but no allowance will be made for their charges or expenses (o). (t) Post, p. 109. (n) Matthew v. Northern Assurance (h) Post, pp. 308, 309. Co., L. R. 9 Ch. D. 80 ; pott, pp. 315— (1) Ex pa/rte Ibbotson ; m re Moore, 826. L. R. 8 Ch. D. 519. (o) In re Haycock's Policy, L. E. 1 (m) Spencer v. Clarke, L. R. 9 Ch. D. Ch. I>. 611 ; In re Sutton's Trusts, W. 137. N. (1879), p. 45 ; pout, p. 326. 89 CHAPTER XIV. JUDGMENT SECimiTIES. The securities of whicli we have hitherto treated form either simple or special contracts ; the usual mode of enforcing them is by action in the High Court of Justice (a). By the judgment given in such an action, the security sued upon becomes extin- guished or merged — transit inrem judicatam — fromthatmoment the litigants become parties to a contract of record, the highest of all contracts known to the English law ; by which contract alone their future relations must be determined (&). A judg- ment, then, stands above all other contracts in point of solemnity, and also in point of efficacy, since it may be immediately put into effect by execution; hence, the propriety of employing judgments for the purpose of securities. There ai'e three modes in which this object may be attained, viz. : — (1) by a warrant of attorney ; (2) by a cognovit actionem ; (3) by a Judge's order ; the chief difference between them being that, the two latter are given in the course of an action already commenced, whilst the former may be given independently of any action. By each of the above methods judgments may be had without going through the regular course of an action, and such judgment will, with certain modifications, possess the attributes previously enume- rated as appertaining to a deed (c). Thus, the doctrines of merger, estoppel, and implication of consideration, apply to judgments in the same manner as to specialities, except that the parties to a judgment are generally precluded from inquiring into any illegality or fraud in the transaction which formed its (a) See post, chap, xxxiv. v. Stewart, 9 Q. B. 7.59 ; Kendall v. (h) Higgins's Case, 6 Rep. 44 C. ; HamUton, L. K. 3 C. P. D. 403. Khig t>. Hoare, 13 M. &, W. 494; Todd (e) Ante, pp. 60, 61. 90 PERSONAL SECURITIES OR SECURITIES ON CREDIT. foundation (d). So, a judgment can only be discharged hj being duly satisfied, or by being set aside by the Court in which it was obtained, or by becoming barred by lapse of time (e). A judg- ment remains in force for twelve years (/ ), and as between the original parties thereto, execution may issue at any time within six years from the recovery of the judgment ; where such six years have elapsed, or any change has taken place by death or otherwise, in the parties entitled or liable to execution, the party alleging himself to be entitled to execution may obtain an order from the Court or a Judge to issue execution accordingly^ or that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried (g). If the effect of such an order be equivalent to that of a revivor by scire facias, a new right to proceed within twelve years will be thereby given (A). In the administration of a deceased person's estate, judgment debts had priority over speciality or simple contract debts, for the 32 & S3 Vict. c. 46 only put the two latter classes of debts on an equality (i) ; the above priority, however, did not obtain where the assets were merely equitable, for there the maxim, aequitas sequitur legem, had no application, and the principle of equal distribution was consequently thorough-going. A creditor of a deceased person who recovered judgment for the debt against his representatives, obtained the priority of a judgment creditor in the administration, and judgment creditors ranked inter se, according to the order of time in which their judgments were entered up (k). Judgment creditors have no priority in bank- ruptcy, until execution is issued and realised as hereafter {d) In re European Central Ely. Co. ; vered in execution under 27 & 28 Vict. Ex parte Oriental Financial Corpora- c. 112. tion, L. E. 4 Ch. D. 33. (g) 38 & 39 Vict. c. 77, sch. 0. xlii. (e) Flower v. Lloyd, L. R. 6 Ch. D ; rr. 18, 19. Girdlestone v. Brighton Aquarium Co., (A) Farran v. Beresford, 10 CI. & L. E. 3 Ex. D. 137 ; W. N. (1879), 67. Fin. 319 ; FarreU w. Qleeson, 11 CI. & 297, 10 Ch. D. 327 ; Moore v. Bow- Fin. 702. maker, 7 T. E. 97. («) Norris v. Sadleir, L E. 8 Eq. 160, (/) 3 & 4 W. IV., c. 27, B. 40; 519; Hanky v. M'Dermott, L K. 9 37 & 38 Vict. c. 57, s. 8. Qumre, if six Eq. 35. years be not a bar, unless land be deli- (h) In re Williams, L. E. 15 Eq. 398. JUDGMENT SECURITIES. 91 stated ; and the same rule now obtains in the administration of the assets of any person dying insolvent after 1st November, 1875 (I). In times past one of the greatest advantages of a judgment was that it gave a lien on the judgment debtor's lands, but now no judgment entered up after 29th July, 1864 (m), shall affect any land, until such land shall have been actually delivered in execution, by virtue of a writ of Elegit, or other lawful authority in pursuance of such judgment (n) ; and every writ or other process of execution of any judgment by virtue whereof any land shall have been actually delivered in execu- tion, shall be registered in the name of the judgment debtor in a book to be kept for the purpose by the Senior Master of the Common Pleas Division of the High Court of Justice (o) ; and every judgment creditor, to whom any land of his debtor shall have been actually delivered in execution, by virtue of any such judgment, and whose writ or other process of execution shall have been duly registered, shall be entitled forthwith, or at any time afterwards, while the registry of such writ or other process shall continue in force, to obtain from the Chancery Division, upon petition in a summary way, an order for the sale of his debtor's interest in such land ; the pro- ceedings upon such order for sale are the same as those adopted by the Court on the sales of the real estates of deceased persons for payment of their debts (p). All incum- brancers on the land are enabled to have the benefit of the sale, the proceeds of which are to be distributed according to the priority of the several charges (q) ; and all persons claiming any interest in the land through or under the debtor by any means subsequent to the delivery of such land as aforesaid, shall be bound by every such order of sale, and by all the proceedings {I) Post, pp. 396, 397 ; s. 10, 38 & S9 {p) S. 4, 27 & 28 Viot. c. 112 ; Vict. c. 77 ; In re Hastings ; Shirreff v. Semble that Bly. Co.'a interest in its Hastings, L. E.. 6 Ch. D. 610 ; In re railway is not saleable, under s. 4, but Knott, Ij. E. 7 Ch. D. 549 n. there may be exceptions as to surplus (m) 27 & 28 Vict. c. 112; the Act land, /m re Calue Ely. Co., L. R 9 Eq. does not extend to Ireland. S. 7. 658 ; In re Bishop's Waltham Ely. Co., (m) Ibid, a. 1 ; Eorke v. Sherlock, Ir. L. K. 2 Ch. 382. E. 11 Eq. 510. {q) Ibid., a. 6. (o) Ibid,s.S; s. 3, 23 & 24 Vict. c. 38. 92 PERSONAL SECURITIES OK SECURITIES ON CREDIT. consequent thereon (r). The effect of the foregoing enactments is, that judgments can only charge at law such lands or interests therein as are capable of being delivered in actual execution, and cannot create a charge thereon till such lands are actually delivered in execution (s) ; therefore, estates and interests, such as an equity of redemption (t), or an equitable leasehold interest (m), or an estate in remainder (x) which cannot be delivered in execution, are incapable at law of being charged by judgments; but lands are held to be delivered in execution when sequestrators are in receipt of the rents and profits (y), or when a writ of execution is returned by the sheriff, and generally, the order of the court (e. g., by writ of assistance, or sequestration, or appointflient of receiver) effects as to equitable interests what the action of the sheriff does as to legal estates (z). Equitable interests such as an equity of redemption are within s. 1, 27 & 28 Vict. c. 112 ; and, where a judgment creditor is unable to obtain a delivery-in execution by elegit on account of the legal estate being outstanding, he should apply to the Chancery Division to remove the impediment, and the order of the Court will be a " delivery in execution " (a). The priority of judgment creditors is, according to the order of time in which their writs of execution are put into the hands ef the sheriff, not according to the dates of the judgments (J)). Although judgments are now no longer a charge on the debtor's land until the same is delivered in execution, yet a judgment creditor may claim to redeem and foreclose when the writ of execution cannot be enforced by reason of the legal estate being out- standing in a prior incumbrancer (c) ; but, on the other hand, a judgment creditor who has issued no writ or other process, nor (r) S. 6, 27 & 28 Vict. c. 112. (y) In re Rush, L. R. 10 Eq. 442 ; but (s) Thornton v. Finch, 4 Giff. 515 ; see Johnson «. Burgess, L.R. 15 Eq. 398. 34 L. J. Ch. 466. (a) Hatton v. Haywood, L. B. 9 Ch. («) Thomas v. Cross, 2 Dr. & Sm. 413. 229. (u) In re Duke of Newcastle, L. K. (o) Anglo-ItaUau Bank v. Davies, L. 8 Eq. 700; Moher v. O'G-rady, 4 L. R. K. 9 Ch. D. 275. Ir. 54. (6) Guest v. Cowbridge Ely. Co., L. (a;) 1 & 2 Vict. c. 110, s. 11 ; In re E. 6 Eq. 619. South, L. R. 9 Ch. 369 ; Neat v. Duke (c) Beckett v. Buckley, L. E. 17 Eq. of Marlborough, 3 My. & Cr. 407. 435 ; Jeilerys v. Dickson, L. E. 1 Ch. 183. JUDGMENT SECURITIES. 93 taken any step to enforce his judgment, need not be made a party to a foreclosure suit instituted by a mortgagee or other in- cumbrancer of or on the judgment debtor's lands (d). At the same time a judgment creditor may obtain a garnishee order binding the debts due or accruing to his judgment debtor (e), or a charg- ing order upon his stock or shares in public companies (/), and by that means acquire a specific lien on such debts or shares, but in all such cases the judgment creditor can obtain no higher rights than those held by the judgment debtor (g), and, there- fore, a prior judgment creditor is postponed to an equitable mortgagee of stock, though no notice had been given of the mortgage, when the same was effected before the charging order was made (A). Having sued out an elegit, which cannot be executed because the legal estate is outstanding, a judgment creditor may obtain a decree for a receiver and sale, to which the judgment debtor and subsequent incumbrancers only are parties, without redeeming prior incumbrancers (i). In being deprived of their power to bind land until delivered in execu- tion, judgments have no doubt lost their most valuable recom- mendation as securities ; still have they these advantages : they admit of speedy realisation (Jc) ; they bind all parties, even infants and other persons under disability, until duly set aside (I) ; they enable the party entitled to their benefit to obtain a garni- shee or charging order (m) ; hence, judgment securities may some- times, as the law at present stands, be usefully employed. We may now proceed to deal with each kind in detail, beginning with — (d) Earl of Cork v. Russell, L. R. 13 Continental Gas Co., L. R. 7 Ex. 332 ; Eq. 210; Mildred •«. Austin, L. R. 8 Craig u. Taylor, L. R._2 Ex. 131 ; Hope- Eq. 220 — disapproved. well v. Barnes, L. R. 1 Ch. D. 630 ; (e) 37& 38 Vict. c. 83, 1 Soh. 0. xlv ; Finney v. Hinde, L. R. 4 Q. B. D. 102. Stevens v. Philips, L. R. 10 Ch. 417 ; {g) In re Onslow's Trusts, L. R. 20 Hall V. Pritohett, L. R. 3 Q. B. D. 215; Eq. 677. Dolphin V. Layton, L. R. 4 C. P. D. 130 ; {h) Scott v. Lord Hastings, 4 K & J. Patterson v. Doyle, 4 L. R. Ir. 33. 633. (/ ) 37 & 38 Vict. c. 83 ; 1 Soh. (i) Wells v. Kelpin, L. R. 18 Eq. 298. 0. xlvi ; 1 & 2 Vict. u. 110, ss. 14, 15 ; (h) Smith v. Smith, L. R. 9 Ex. 12. 3 & 4 Vict. 0. 82, s. 1 ; Bagnall v. (0 HenryuArohibald,Ir.R.5Eq.559. Carlton, L. R. 6 Ch. D. 130 ; Burns v. (m) 37 & 38 Vict. c. 83, 1 Soh. 0. Irving, L. R. 3 Ch. D. 291 ; Gill v. xlv, xlvi. 94 PERSONAL SECURITIES OR SECURITIES ON CREDIT. Section I. Warrants of Attorney. A warrant of attorney is a written authority, addressed to one or more solicitors named by a third party, empowering such solicitor or solicitors to appear and receive a statement in an action brought or to be brought by such third party against the person giving authority, and to confess the same or suffer judgment by defaiilt. A warrant of attorney may be executed as a security for the performance of any agreement between the parties ; but it does not extinguish an original debt, or affect the right to sue thereon until judgment has been signed, for until this is done it is merely a collateral security (n). It is usual to make the warrant subject to be defeated on the performance of certain conditions, and when this is the case they are set forth in an agreement, hence called the defeasance. The defeasance is not a contract but merely a description of the object of the security and of the means of enforcing payment. A warrant of attorney, dated 2nd May, 1864, with following defeasance : — " The within written warrant of attorney is given for securing the payment of the sum of £1,330, with interest thereon, at and after the rate of £5 per cent, per month, on the second day of June next. Judgment to be entered up forthwith, and in case of default of payment of said sum of £1,330 and interest thereon, on the day aforesaid, execution or executions, and other processes may then issue for said sum of £1,330 and interest together with costs of entering up judgment and all other incidental expenses whatever," was held to be only an authority to enter up judgment for these various sums to be ascertained on 2nd June, 1864, after which time the holder of the security would merely stand as a creditor for the sums so ascertained, and the statutable rate of interest thereon that might be allowed him by the jury or by the court (o). A warrant of attorney need not be (») Cuthbert v. Dobbin, 1 C. B. 278 ; (o) Cook v. Fowler, L. R. 7 H. L. 27. • Davison v. Overend, 6 C. P. 222, post, Post, p, 422, 423. chap. xxxi. JUDGMENT SEOUEITIEB. 95 under seal, imless it authorise a release of errors {v) ; both itself and the defeasance (if any), must be signed by the party who gives it, or by some other person in his presence for him, and, if under seal, the party must also make due delivery (cj). By 32 & 33 Vict. c. 62, s. 24 {r), a warrant of attorney to confess judgment in any personal action or cognovit actionem,, given by any person, shall not be of any force, unless there is present some solicitor of the Supreme Court on behalf of such person expressly named by him, and attending at his request, to inform him of the nature and effect of such warrant or cognovit before the same is executed, which solicitor shall subscribe his name as a witness to the due execution thereof, and thereby de- clare himself to be solicitor for the person executing the same and state that he subscribes as such solicitor (s). By s. 25 a warrant of attorney to confess judgment, or cognovit actionem not executed in manner aforesaid, shall not be rendered valid by proof that the person executing the same did, in fact, under- stand the nature and effect thereof, or was fully informed of the same (t). By s. 26, where in an action a warrant of attorney to confess judgment, or a cognovit actionem is given, and the same or a true copy thereof is not filed with the officer acting as elerk of the docquets and judgments in theCourt of Queen's Bench within twenty-one days next after the execution thereof, as re- quired by 3 Geo. IV. c. 39, for preventing frauds upon creditors by secret warrants of attorney to confess judgment, the same shall be deemed fraudulent, and shall be void; and if any such warrant of attorney, ot cognovit actionem, so filed, was given subject to any defeasance or condition, such defeasance or condition shall be writ- ten on the same paper or parchment with the warrant or cognovit before the filing thereof, otherwise the warrant or cognovit shall be void. In entering up judgment, the authority given by the (p) Kinnersley v. Mussen, 5 Taunt. also James v. Magennia, I B 5 C L 264 ; Bratton v. Burton, 1 Chit. 707 ; 253 ; 3 C. L 100. ' ' " Solomon ». Graham, 5 El. & Bl. 309. (s) 36 & 37 Vict. c. 66, s. 87 ■ Lucey (2) Ante, p. 60. ■■'. Murphy, I. E. 7 C. L. 494 ' (r) The Debtors Act, 1869 ; the (t) Walsh v. Nally, I. E. H L Irish Act is 35 & 36 Viot. c. 57. See 337. ' ' ' 96 PERSONAL SECURITIES OR SECURITIES ON CREDIT. •warrant should be strictly pursued. Judgment may be entered up at the time allowed by the warrant within a year and a day next after the date of the warrant, as of course. After that time, or if there be a change in the parties, the leave of a judge must be obtained (w), unless the warrant or defeasance, in ex- press terms, dispense with the necessity for such leave (x). Leave to enter up judgment on a warrant of attorney, above one and under ten years old, is granted by a judge's order, made ex parte ; but, if ten years old, or more, upon a summons to show cause (y); the application is made to a judge at chambers, and founded on an affidavit stating (z) 1, the execution of the war- rant ; 2, the consideration therefor, and the amount remaining due to the plaintiff; 3, that the defendant is alive. The execu- tion should be deposed to by the attesting witness ; the plaintiff himself should swear to the consideration and sum remaining due, and if he does not so swear, the affidavit must show the reason why not (a) ; the fact that the defendant is alive is proved by the deponent's oath that he saw him alive, or that he was alive within a reasonable time before the application was made, and that deponent believes he is stUl alive (b). By Eeg. Gen. 1853, H. T. r. 25, no judgment shall be signed on any cog- novit, or warrant of attorney, without such cognovit or warrant being delivered to and filed by the master, who is hereby ordered to file the same in the order in which it is received. Judgment is signed in the division of the High Court pointed out by the warrant, and must be entered up in the names of the parties for and against whom the warrant gives authority (c). As soon as judgment is signed, the plaintiff may sue out execution as in ordinary cases, unless prevented from so doing by the terms of the defeasance. The defeasance generally dispenses with the neces- sity of reviving a judgment where more than six years have elapsed since it was signed. The writ of execution must not (») II. Oh. Pr. 12th ed. 965. W. K. U5. {x) Sherran v. Marshall, 13 L. J. Q. (z) Handley v. Koberts, 17 Jur. 440. B. 66. (a) Barton v. Turner, 8 D. P. C. 122. {y) Reg. Gen. H. T. 1853, r. 26; (6) Jordan «. Farr, 4 N. & M. 347. Sherburne v. Lord Huntingtower, 11 (c) Doe ». Stewart, 1 D. Q.B.N. S. 813. JUDGMEISTT SECURETIES, 97 be indorsed to levy a greater amount than that authorised by the warrant and defeasance. If there has been a change of the parties to a judgment, the same course to make fresh parties must be taken as in ordinary cases (d). By 3 Geo. IV. c. 39, s. 8, it shall be lawful for any of the judges of the Court in which a warrant of attorney or cognovit actionem, is given to order a memorandum of satisfaction to be written upon such warrant or cognovit, or a copy thereof, respectively, as aforesaid, if it shall appear to biTin that the debt for which such warrant or cognovit was given as a security shall have been satisfied or discharged. A warrant of attorney, and judgment thereon, may be set aside for fraud, or for non-compliance with 32 & 33 Vict., on applica- tion of the defendant (e). Section II. Cognovit Actionem. A cognovit actionem is a defendant's written confession of an action brought against him, usually given upon condition that he shall be allowed a certain time for the payment of the debt or damages, the amount of such debt or damages being, in .general, first ascertained and agreed upon. It is supposed to be given in Court, and it impliedly authorises the plaintiff's solicitor to do everything necessary to obtain judgment. It may be given at any time after process sued out ; if given after the state- ment of a defence it usually contains an agreement to withdraw such defence, in which case it is called a cognovit actionem relicta verificatione (/). It also generally contains an agree- ment that the defendant will not take any proceedings to delay judgment or execution — a stipulation which can be enforced against the defendant but not against his personal representa- tives (g). No prescribed form of cognovit is in general requi- (d) Brown v. Barton, 5 D. & L. 289 ; (e) Adlam v. Noble, 9 D. P. C. 322. Wentworth v. Bullen, 9 B. & C. 840, (/) II. Ch. Pr. 12th ed. 942. II. Oh. Pr. 12th ed. 973 ; 38 & 39 Vict. (g) Sherran u. Marshall, 13 L. J. Q. c. 77, 1 Soh. O. xlii. r. 19. B. 66. 98 PEESONAL SECtTHITIES OE SECTJKITIES ON CEEDIT. site ; the terms, however, upon which it is given ought expressly to appear (h). If the action be against two or more defendants the cognovit should be signed by all to warrant a judgment against them, and, where one of several parties signs after the others, his signing relates back to the time of their signing (i). The requisites for the due attestation and filing of a cognovit, and for entry of satisfaction of the judgment thereon have been already described (/c). If the cognovit be made unconditionally, the plaintiff may sign judgment and sue out execution when he pleases (i), even after a year has elapsed from the giving of the cognovit or the taking of any step under it (jn). But judgment cannot be signed or execution sued out contrary to the terms of the cognovit [n). If the defendant has not appeared, an appear- ance must be entered for him before judgment can be signed, but no statement of claim need be delivered or filed, unless delivered before the cognovit was given. If by the terms of the cognovit the costs are to be taxed, they must be taxed accord- ingly before judgment can be signed, unless the plaintiff chooses to waive his right to them, in which case express notice should be given to the defendant before signing judgment for the debt (o). Section III. Judge's Order. In an action for debt, a judge's order — with consent of both parties — may be obtained for stay of proceedings, with a condition that final judgment shall be signed, and execution issued in the event of the debt and costs not being paid within a certain time. By Eeg. Gen. Hil. Ter. 1853, r. 155, all written consents (h) II. Chitt. Pr. 12th ed. 943. (m) Thompson i;. Langridge, 1 Ex. 36. (i) Perry v. Turner, 1 D. P. C. 300. (n) Halton v. Young, 2 W. El. 543. (h) Ante, pp. 95—97. (o) II. Ch, Pr. 12th ed. 946. (I) Calvert v. Tomlin, 5 Bing. 1. JUDGMENT SECURlTfES. 99 upon which orders for signing judgments are obtained, shall be preserved in the chambers of the judges of the respective courts. By r. 156, in actions where the defendant has appeared by solicitor, no such order shall be made unless the consent of the defendant be given by his solicitor or agent (p). By r. 157, where the defendant has not appeared or has appeared in person, no such order shall be made, unless the defendant attends the judge, and gives his consent in person, or unless his written consent be attested by a solicitor act- ing on his behalf, except in a case where the defendant is a barrister, conveyancer, special pleader, or solicitor. By 32 & 33 Vict. c. 62, s. 27, where a judge's order, made by consent, is given by a defendant in a personal action, whereby the plaintiff is authorised forthwith, or at any future time, to sign or enter up judgment, or to issue or to take out execution, whether such order is made subject to any defeasance or condition or not, then, if the action is in the Queen's Bench Division, the order, ■ and if the action is in any other division of the High Court, a true copy of the order, shall, together with an affidavit of the time of such consent being given, and a description of the resi- dence and occupation of the defendant be filed, with the officer acting as clerk of the docquets, and judgments in the Queen's Bench Division within twenty-one days after the making of the order, otherwise the order, and any judgment signed or entered up thereon, and any execution issued or taken out on such judgment shall be void. By s. 28, the provisions of the 3 Geo. IV. c. 39, and 6 and 7 Vict. c. 66, for liberty to file a warrant of attorney or cognovit actionem, or a copy thereof, with the clerk of the docquets and judgments, and for that clerk to make certain entries and searches in relation thereto, and for entering satisfaction thereon, and for fees for search and filing and taking office copies, shall extend to and be applicable to every such judge's order. (p) As to the jurisdiction of judges c. 66, s. 87 ; Hillman v. Mayhew, L. H. of different Divisions of the High Court, 1 Ex. D. 132. see 1 & 2 Vict. c. Ufi ; 36 & 37 Vict. H 2 100 PEESONAI, SE('UEITIKS OE SECURITIES ON CREDIT. If the debt and costs Ise not paid according to the terms of the order, judgment may he signed. If not agreed upon, the costs must he taxed in the usual manner as on a cognovit. For the purpose of enforcing a judge's order, it is no longer necessary that judgment thereon should first be signed, as execution may now issue directly on a judge's order in the same manner as on a judgment (q). It has been held, however, that an order obtained by a defendant dismissing an action with costs for want of prosecution is not equivalent to a judgment, so as to be within the provisions as to attachment of debts (r). Whether an action will lie upon a judge's order, depends upon the nature of the agreement evidenced by the terms of the order; the agreement may or may not limit the plaintiff to a particular remedy (s) ; " the contract of the parties is not the less a contract and subject to the incidents of a contract because there is super- added the command of a judge " (t). No appeal lies from a judge's order made by consent of the parties, except by leave of the judge making the order (u). The order may in most cases be made at chambers by a Master of the Queen's Bench, Com- mon Pleas, or Exchequer Divisions, or by a registrar of the Probate, Divorce, and Admiralty Division (x). (q) 38 & 39 Vict. c. 77; O. xlii , v. 20. Ex. 267. (r) Grcmetti v. Crom, 27 W. E. 411 ; (t) Wentwortli v. BuUen, 9 B. & C. W. N. (1879) 33. 840, per Parke, B. (s) Lievealey v. Gilmore, L. R. 1 C. (a) 36 & 37 Vict. c. 66, s. 49. P. 570 ; Hookpayton v. Bussell, 23 L. J. {x) 38 & 39 Vict. c. 77 ; 0. liv., r. 2. 101 CHAPTER XV. GUARANTEES. So far we have been dealing with transactions in which there was a principal debtor or debtors only. We proceed to inquire under what conditions a person becomes liable by his own agreement to answer for the debt of another. Such an agreement is styled a guarantee, the original debtor is termed the principal, and the person who undertakes to be responsible for his engagement the surety. It is obvious that on the same contract there can be no sub- ordinate liability attaching to one party, unless there is a primary liability attaching to some other party. The relation of principal and surety cannot exist except where the former is under a legal obligation, in the first place, to perform or forbear from some given act ; hence, the fundamental element to the liability on a gimrantee for the payment of money is the exist- ence of a principal debt. If that debt be extinguished in any way, the guarantee is also extinguished (a). Nay, further, if that debt be modified between the creditor and the principal debtor without the consent of the surety, the latter will in general be discharged from all liability on the contract (6). Thus, if a guarantee be given for a debt payable immediately, a binding agreement by the creditor with the debtor to make no (a) Lakeman v. Mountstephen, L. R. D. 669 ; City Discount Bank v. M'Lean, 7 H. L. 17 ; Wilkes v. Dudlow, L. E. L. R. 9 C. P. 692 ; Saunderson v. Aston, 19 Eq. 198 ; Mallet v. Bateman, L. K. L. R. 8 Ex. 73 ; Phillips v. Toxall, L. 1 C. P. 663; Bank of Montreal v. R. 7 Q. B. 666; Mailing Union v. Munster Bank, I. R. 11 C. L. 47 ; Graham, L. R. 6 0. P. 203 ; Tayleur v. Butcher v. Stuart, 11- M. & W. 873 ; Wildin, L. R. 3 Ex. 303 ; Barry v. Birkmyr v. Darnell, 2 Ld. Raymd. 1085. Morony, I. R. 8 C. L. 554 (6) Polak V. Everett, L. R. 1 Q. B. 102 PERSONAL SECtTRITIES OR SECURITIES ON CREDIT. claim for a certain time, either against himself or even merely against the surety, will exonerate the latter, unless he has been a consenting party to the arrangement (c) ; but there must be a binding agreement, not a mere proposal therefor, to have such effect (d). The same result will follow if the creditor surrenders a security given by the debtor before or concurrently with the guarantee (e) ; or if by the laches of the creditor the benefit of a bill of sale is defeated for want of registration (/) ; or if the debtor enters into a composition with his creditors to which the guaranteed creditor agrees without reservation (^r) ; or if a material change of circumstances supervene, and is concealed by the person receiving the guarantee (h). The death of a guarantor does not alone determine the guarantee, but notice to guaranteed creditors that there is no personal estate may dis- entitle them to a charge on the real estate of the guarantor (i). A surety on a promissory note is not discharged by the accept- ance by the payee, in good faith and without notice, of payment from the maker which is afterwards avoided as a fraudulent preference (Jc). Where the principal and sureties are bound for a series of separate payments, time given to the principal as to one payment discharges the sureties as to that, but not as to the other payments {l), and in every case a creditor may give time to the principal and by express stipulation still reserve his rights against the surety («?,), but for the reservation to be effectual, there must, it would seem, be a distinct expression of intention to that effeqt (»?). In the absence of such reservation a surety is discharged by a voluntary composition on the (c) Rees v. Berrington, 2 Ves. Jnn. {A) Cragoe v. Jones, L. K. 8 Ex. 81. 540 ; Wilson v. Lloyd, L.E. 16 Eq. 60; (i) Harris «. Fawcett, L. R. 8 Ch. Maiiigay v. Lewis, Ir. E. 5 C. L. 229; 866. 3 C. L. 495. (*:) Petty v. Cooke, L. R. 6 Q. B. 690. {d) Torrance v. British Bank of N. (I) The Croydon Commercial Gas. Co. America, L. R. 5 P. C. 246. v. Dtekinson, L. R. 2 C. P. D. 46. (e) Liquidators of Overend, Gurney (m) Miiir v. Crawford, L. R. 2 H. L. & Co. V. Liquidators of Oriental Finan- So. 466 ; Glegg v. Gilbey, L. R. 2 C. P. eial Corporation, L. R. 7 H. L. 348. D. 6, 209; £x fmU Charlton; Re if) Wolff V. Jay, L. R. 7 Q. B. 766. Charlton, 36 L. T. 561. ■ (gf) Williams v. Bayley, L. R. 1 H. L. (») Liquidators of Overendi, Gurney 200 ; Daries v. London and Provincial & Co. v. Liquidators of Oriental Finan- Marine Insurance Co., L.R. 8 Ch.D. 469. cial Corporation, L. R. 7 11. L. 348. GUARANTEES. 103 part of the principal in which the guaranteed creditor joins (o), but not by an order of discharge in bankruptcy or liquidation (p). An agreement by the creditor to accept a less sum in satisfaction of the debt within a given time (g), or the taking of a further security, not in lieu of, but in addition to, the original one, does not affect a guarantee (r), unless it be a consideration for giving time to the principal (s) ; and, generally, any stipulation between the creditor and debtor which must be for the benefit of the surety, or at least cannot be to liis detriment, will be attended with a similar consequence (t), and the question whether or not there has been a material alteration in the relation of the parties will be for a judge or jury to decide, according to the particular circumstances (u). Next, as to the form of a guarantee : — No action can be brought against a surety unless on an agree- ment or some note or memorandum thereof in writing, signed by him or by his agent thereunto lawfully authorised (x). It is enough if there be a written guarantee, or a sufficient note thereof, so signed; neither the original contract between the creditor and debtor, nor the authority of the agent (if any) who signs for the surety, need be in writing (y), nor is it necessary the creditor or principal debtor should sign the guarantee (z), to which, indeed, the only proper parties are the former and the surety. The signature, however, must be so introduced as to govern or authenticate every material and operative part of the instrument (a). The guarantee may or may not be under seal. In the former case, according to the general principle that a deed imports a consideration, a gratuitous surety will be liable ; in (o) Grreen v. Wynn, L. R. 4 Ch. 204 ; cial Corporation, ubi supra. 7 Eq. 28 ; Leathley v. Spyer, L. R. 5 («) Hulme v. Coles, 2 Sim. 12. C. P. 595 ; Bateson v. Grosling, L. R. (w) Holme v. Brunskill, L. R. 3 Q. B. 7 C. P. 9. D. 495 ; Caton v. Caton, L. R. 2 H. l! (p) Breslauer v. Brown, L. R. 3 App. 127 ; Davies v. London and Provincial Cas. 672; Megrath v. Gray; Gray v. MarinelnsurauoeCo., L.R. 8Ch.D 469 Megrath, L. R. 9 C. P. 216 ; JEx parte (x) 29 Car. II. c. 3, s. 4. Jacobs, /mrc JaiCobs, L. R. 10 Ch. 211. {y) Graham v. Musson, 7 So. 769; (j) Bell V. Banks, 3 So. N. R. 497. Rossiter v. Miller, L. R. 3 App Cas' (r) Gordon v. Calvert, 4 Rubs. 581. 1124. (s» Liquidators of Overend, Gumey (2) Laythoarp v. Bryant, 3 Sc. 238. & Co. V. Liquidators oi Oriental Finan- (a) Caton v. Caton, L. R. 2 H. L. 127. 104 PERSONAL SECURITIES OR SECURITIES ON CREDIT. the latter case, a surety will not be liable unless his undertating is supported by a valuable consideration (6). Thus, if 0. guar- antees (1) by bond a past advance of £1,000, (2) by his note of hand a past advance of £500, (3) by bill a past advance of £200, and a present or future advance of £100, from A. to B, C. will be liable on the bond and biU, but not on the note, for a merely past transaction is no consideration (c). Until the Mercantile Amendment Act, it was necessary that the consideration should appear on the face of a guarantee, as it was held the contract would not otherwise be reduced to writing, since the considera- tion formed a material part thereof (d). By the above statute, the consideration need no longer be expressed (e), but the neces- sity for its existence is left unchanged. The following is a simple form of guarantee not under seal : — London, the day of , 18 . In consideration that Mr. C. D. will, at my request, (or " has at my request ") [here state the consideration for which the guaranty is given], I do hereby guarantee to him the said Mr. C D. [here state the sum or thing guaranteed]. This guaranty is to continue in force for the period of [state period, if agreed on], and no longer. Witness my hand, A. B. (/.) We have mentioned on a former page that one of the attri- butes of a deed is that it cannot be discharged except by due satisfaction of its terms, or by an instrument of equal or higher solemnity {g). To this rule, however, a guarantee under seal is an exception, for it will be avoided by the creditor giving time to the .principal debtor, just as much as if it were a guarantee not under seal, and the observations above made as to the exoneration of a surety apply in common to all contracts, what- ever their solemnity, under which his liability is incurred (h). (h) Harris v. Venables, L. K. 7 Ex. (/) Smith's Mercantile Law, 9th ed., 235. 660 n. (c) Eussell V. Moseley, 3 B. & B. 211, {g) Ante, p. 61. {d) Wain v. Warlters, 5 East. 10. (A) Rees v. Berrington, 2 Ves. Jun. (e) 19 & 20 Vict. c. 97, s. 3. 640. GUARANTEES. 105 From the nature of a guarantee, a surety cannot be called upon to fulfil his engagement until the principal debtor has made default (i). When the debt falls due, the surety may bring an action to compel the principal to discharge him from his liability (k). If, by default of the principal, the surety is compelled to pay the debt, he is entitled, besides his own remedies against the debtor, to have a delivery of all collateral securities the creditor may hold for the debt, which securities the surety may realise or proceed upon as the latter might have done(i). A guarantee may be given by one or by several sureties, and in the latter case the creditor, on default of the principal debtor, is entitled to sue all or any one of the sureties. Supposing one or some only of a number of sureties are sued and compelled to discharge the debt, such surety or sureties, besides his or their rights against the principal debtor and the creditor, will be entitled to contribution in proportionate shares from his or their co-sureties for the amount he or they had to disburse (m), and also to the benefit of any security any of them may have taken from the principal by way of general indemnity (n). The mode of contribution is in proportionate shares — that is, each surety will have to pay a sum proportionate to the amount for which he is liable, and if any surety become insolvent, the additional burthen thereby caused will be divided proportionably amongst the remaining sureties. Thus, if one of three sureties. A., has been forced to pay the amount on a guarantee for a debt of £900, he is entitled to contribution of £300 a piece from each of his co-sureties, B. and C, supposing they have each guaranteed the full amount ; and if C. becomes bankrupt with no assets, A. will then be entitled to contribution of £450 from B. If, on the other hand, A. guaranteed only £500, B. £500, and C. £400, then A. would not in any event be called upon to contribute (j) Warre v. Calvert, 7 A. & E. 143. {m) Bering v. Earl of Winohelsea 1 (i) Woolridge v. Norris, L. E. 6 Eq. Cox. 318 ; 86 & 37 Vict. i;. 66 s 2'! 410. sub-s. 11. > • . (1) 19 & 20 Vict. c. 97, s. 5 ; Brandon (n.) Swain v. Wall, 1 Oh Eep 149 V. Brandon, 28 L. J. Cb. 147, post, pp. post, pp. 407—411. ' ' 407—411. 106 PERSONAL SECURITIES OR SECURITIES ON CREDIT. more than £600, nor B. more than £500,- nor C. more than £400 ; and if A., B., and C. are solvent, A. will contribute £360, B. £300, and C £240 ; but, if C. be insolvent, then A. will have to contribute £500, and B. £400 (o). Contribution obtains alike whether the sureties are bound by the same or by different instruments (p) ; but in all cases, so long only as the principal debtor and their engagement remain the same. The amount for which a surety may make himself liable may be certain or unascertained ; the time during which his liability is to continue may be fixed or indefinite, hence the division of guarantees into — (A ) 1, limited, and 2, unlimited ; (B) 1 , specific, and 2, continuing. (A.) A Limited guarantee may mean (1) limited as to part of the account to which it is to be applied, e.g., " 1 will be liable for the amount which.A. B. shall owe you, subject to this limitation, that I shall not be called on to pay more than £250;" or (2) limited as to the total amount to be recovered, eg., "I wiU be liable for £250 of the amount which A. B. shall owe you." In this second sense the guarantee is really absolute as to so much ; hence the guarantor in such case is not entitled, on the bankruptcy of the principal debtor, to any dividend the creditor may receive. In the first sense the guarantee is in fact restrictive, yet extends to the whole debt, therefore the guarantor is entitled, on the bankruptcy of the principal, to any dividend the creditor may receive (q). In other words, a surety has a right to reduce his liability by a rataible proportion of the dividends paid under the bankruptcy of the principal debtor, where he is surety for only part of the debt, or his suretyship is to secure a floating balance ; but where a suretyship limited in amount is for a debt already ascertained, which exceeds that limit, it is not pri/md facie to be construed as security for part of the debt only (r). (o) In re M'Donagh's, J. K. 10 Eq. Oh. D. 248. 269. * {r) Ellis v. Emmanuel, L. R. 1 Ex. [p) WhltiDg 0. B-urke, L. R. 6 Ch. D. 157 ; Midland Ely. Co. v. Chambers, 342, 10 Eq. 539. L. R. 4 Ch. 398 ; Wright v. Hiokling, (}) Hobsun V. Bass, L. R. 6 Ch. 792; L. R. 2 C. P. 199; Bx parte Midland Ex parte Gilbey ; In re Bedell, L. R. 8 Banking Co. ; He Sellers, 38 L. T. 395. GUARANTEES. 107 (B) There is no universal criterion by which a specific can be dis- tinguished from a continuing guarantee. The question whether the liability of a surety is confined to a single transaction, or extends to a series of transactions — ^whether the guarantor is bound to answer for one individual debt or for any debt of a specified class, is to be determined by the language of the instru- ment taken in connection with the surrounding circumstances. Thus, the following guarantee — " I do hereby, in consideration of your forbearing to take immediate steps for recovery of said sum, guarantee payment of, and agree to become responsible for, any sum of money for the time being due from the said 1). to you, whether in addition to the said sum of £2,20.5 3s. 9d. or no," — was held to be unlimited both as to time and as to amount (s). So an instrument in this form — "£50. I, J. M., of, &;o., will be answerable for £50 sterling, that W. Y., of, &c., may buy of M. J. H., of," &c., — was held to be a continuing guarantee (t). The following guarantee — " In consideration of your having at my request agreed to supply and furnish goods to C. (guarantor's husband), I do hereby guarantee to you the sum of £500. This guarantee is to continue in force for* the period of six years, and no longer," — given by a married woman having separate estate, to procure credit for her husband, was held to be limited to goods actually supplied to the husband after it was given (u). It would seem that a general or continuing guarantee under seal may be withdrawn upon paying all that may be due under it at the time of giving notice of withdrawal (a;) ; moreover, a continuing guarantee will be discharged by appropriation ot funds of the surety in the creditor's hands (y). There are certain ^guarantees, such as bail bonds {z), adminis- (s) Coles V. Pack, L. K. 5 C. P. 65. {x) Burgess v. Eve, L. E. 13 Eq. 450. (t) Heffield v. Meadows, L. R. 4 C. {y) Kinnaird v. Webster, L. R 10 P. 595; Nottingham Hide Co. t'. Bot- Ch.D. 139; Brownings. Baldwin, W. N trel, L. R. 8 C. P. 694; Wood v. (1879)44. Priestner, L. R. 2 Ex. -66, 282. (s) See Cootes' Admr. Pr., 2nd ed., («) Morrell v. Cowan, L. R. 7 Ch. D. 40-45, 219, 220 ; 24 & 25 Viot. c. 10, 151. s. 33 ; The Freedom, 3 A. & E. 495. 108 PERSONAL SECURITIES OR SECURITIES ON CREDIT. tration bonds (a), and recognizances, the incidents on which are mainly determined by statute. A recognizance may be defined as an acknowledgment of indebtedness made before a duly authorised tribunal or officer, and entered on the rolls of a court, usually subject to a condition for avoiding such indebtedness on the performance of a specified act, for fulfilment whereof the acknowledgment is given as security. The person who makes the acknowledgment (the cognizor) will be principal or surety, according as the act conditioned is that of himself or of some other person ; the person in whose favour the acknowledgment is made (the cognizee) may be either the Crown or a private individual. A recognizance wherein a private individual is cognizee may, like a bond, be put in suit within twenty years from forfeiture; on due enrolment it affects and may be realised out of the cognizor 's lands in the same manner as a judgment; it is ordinarily proceeded upon by writ of scire facias (b). A recognizance wherein the Crown is cognizee may, when estreated, be enforced by capias, scire facias, information, or extent (c) . The debt created by the forfeiture of a duly recorded recognizance to the Crown has preference, as a Crown debt, over all other debts, and binds the debtor's lands for sixty years from its accrual, except as against purchasers or mort- gagees for value, whether with or without notice (d). («) 20 & 21 Vict. 0. 77, SB. 81, 83 ; Heavens' Smith, L. E. 2 Ex. D. 47 ; Ex In the Goods of Brackenbury, L. K. 2 parte the Postmaster-General; In re P. D. 272. Bonham, W. N. (1879) 24 ; ChurchiU's (6) 3 & 4 WiU. IV. 0. 42, ss. 3, 5 ; Sheriff, 254—258. As to justices of ante, p. 61 ; post, pp. 131, 139 ; 29 Car. the peace, see 11 & 12 Vict. c. 42, ss. II. 0. 3, s. 17 ; 27 & 28 Vict. c. 112 ; 23, 24; 3 Geo. IV. c. 46; 4 Geo. IV. ante, pp. 91, 93 ; 15 & 1 6 Vict. c. 76, ss o. 37. 131, 132. [d) 33 Hen. VIII. c. 39, ss. 51, 52 ; (c) 33 Hen. VIII. c. 39, s. 37 ; 3 & 4 9 Geo. III. c. 16 ; 24 & 25 Vict. c. 62; Will. IV. c. 99, ss. 32, 46; 28 & 29 48 Geo. III. c. 47 ; 39 & 40 Vict. c. 37 ; Vict. u. 104, ss. 31—52 ; In re Arthur 28 & 29 Vict. e. 104, s. 48. BOOK 11. FUNDED SECURITIES, OR SECURITIES OJST PROPERTY. CHAPTER XVI. MORTGAGES.— GENERAL PRINCIPLES. A MORTGAGE is a conditional transfer of property to become absolute in the event of the transferor (the mortgagor) or some other peirson failing to pay to the transferee (the mortgagee) or some other person, a given sum of money at a' given time, for the securing of which payment such transfer is made (a). Thus, a conveyance of property with proviso that the same shall be defeated in case the grantor repay the grantee a certain loan within a specified period constitutes a mortgage (&). As regards their form and effect mortgages are divided into two classes — I. Legal mortgages, or actual conveyances. II. Equitable mortgages, or executed agreements for such conveyances (c). (a) See post, Chaps. XVII — XXIII. the equitable or beneficial interest, and This definition ia accurately true of is the most general, we can frame, mortgages where fulfilment of the con- (6) Tor the general nature of Mort- dition, as in the example, simply avoids gage, see Sir T. Plumer's Judgment in the conveyance ; but not of mortgages, Choliaondeley v. Clinton, 2 Jac. & where the condition is for reconvey- Walk. 182. ance, so far as the Common Law estate (c) Russell «. EusseU. See post. Chap, or interest is concerned. But even in XXIII. such mortgages the definition is true of 110 FUNDED SECURITIES OR SECURITIES ON PROPERTY. As regards their subject-matter, mortgages are divided into— I. Mortgages of immovables, or of real property. II. Mortgages of movables, or of personal property. Before dealing with any particular kind of mortgage, we shall state the general nature of all mortgages, and a few common principles applicable thereto. By a mortgage, then, an owner loses only some of his original rights of ownership in the first instance ; thus, he will be restrained from exercising the jus abutendi or the right to alter or waste the subject mort- gaged, so as to render the security insufficient (d), whilst the right to use and enjoy the same or the jus utendi-fruendi belongs, in the absence of agreement to the contrary, to the mortgagee, who may enter into possession and take the rents and profits, for which, however, he will have to account (e) ; but if he abstain from entering into possession, the mortgagor may continue to take the rents and profits without any liability to account therefor (/), On the other hand, the mortgagor can claim the property against all the world except the mort- gagee (g) ; he may also dispose of the property to whomsoever he will, or, if he please, he may mortgage it again and again — such disposition or mortgages being always subject to the original mortgage so long as that remains unsatisfied, and in the absence of any subsequent agreement altering the relations of the parties ; thus, the jus vindicandi and jus disponendi remain vested in the mortgagor, subject to the incumbrance or incum- brances — in the mortgagee, to the extent of his security. Even when the contingency, upon which the property is to pass to the mortgagee, does fall out, the mortgagor still retains a right to redeem the property (called an equity of redemption) on pay- ment of the debt, interest, and cost of re-conveyance, nor can that right which is in fact an estate or interest (A) be extinguished (d) King X. Smith, 2 Hare, 239 ; as Johnson v. Royal Mail, &c. Co., L. R. to ameUorating waste, see Doherty v. 3 C. P. 38 ; Bradley v. Copley, 1 C. B. Allman, L. K. 3 App. Gas. 709. 685 ; Wheeler v. Montefioie. 2 Q. B. (c) Wilson V. Cluer, 3 Beav. ; Park- 133. inson V. Hanbiiry, L. R. 2 H. L. 1 ; {g) S. 25, sub-s. 5,36 & 37 Vict. o. 66. Lows V. Telford, L. E. 1 App. Cas. 414. (A) Casbome ». Scarfe, 1 Atk. 605 ; (/) Ci>llms V. Lamport, 34 L. J. Ch. In re Dudson's Contract, L. E. 8 Oh. 196 ; The Innisf alien, L. E. 1 Ad. 72; D. 628. MORTGAGES — GENERAL PRINCIPLES . Ill except by lapse of time under the Statutes of Limitation {%), by absolute decree of foreclosure (/c), or by sale in pursuance of judicial decree (I), or power conferred by agreement of the parties or the nature of the mortgage (m). Whether a sale takes place under an order of the Court or according to voluntary stipula- tion, the proceeds are first applied to discharging the legal expenses and incumbrances, over and above which any remain- ing balance accrues to the mortgagor (n). A mortgage is thus throughout a security, and so con- strued ; hence the universal principle — " Once a mortgage always a mortgage'' — which nullifies a stipulation whereby the mortgagor would forego his equity of redemption (o). The right of the mortgagee to keep the estate does not, however, depend upon his right to recover the debt in an action, but the two rights are wholly independent — -the one of the other. The right of the mortgagee is not to recover the money, but to keep the estate tiU the money is paid, which is a totally diffei ent thing (p). A, mortgagee may, however, assign (q) over the mortgage debt; the assignee will then take, subject to the equities between the mortgagor and mortgagee; hence the propriety of obtaining the concurrence of the mortgagor in any assignment (r). To constitute a mortgage, no particular form of words is re- quired, it is enough that a transfer of property is made with the mutual intention that it shall be a security for money or any other incumbrance (s), though it is sometimes necessary the conveyance should be by deed or other formal instrument (t). By due payment of ^the debt the mortgage becomes extin- guished and cannot be made a continuing security for further (i) Raffety v. King. See post, pp. (o) Howard v. Harris, 1 Vern 33 130—141. 190; Chappie u. Mahou, Jr. R. 5 Eo' (i) Frees v. Coke, L. R. 4 Ch. 645. 225. {I) 15 & 16 Vict. 0. 86, s. 48. Cor- (p) Expwrte Sheil ; In reLonerean saffis V. Patman, L. R. 4 Eq. 166. L. R. 4 Ch. D. 789. ' (m) Carter v. Wake, L. E. 4 Ch. (q) Post, p. 313. D. 605 ; 23 & 24 Vict. o. 145. (r) Walker v. Jones, L. R. 1 P. C. 50. (n) Rushbrook v. Laurence, L. R. 5 (s) Maston v. Woods, L E 4 D B Ch. 3 ; Perry v. Barker, 13 Ves. 205 ; 293. ' ' Mayer i). Murray, L. R. 8 Ch. D. 424 ; [t) Kelly „. Hutton, L. R. 3 Ch Langton v. Waite, L. R. 6 Eq. 165. 703, and see post, pp. 120, 142, 150 112 FUNDED SECURITIES OR SECURITIES ON PROPERTY. advancements (u) ; and, if such payment be before condition broken, the title is revested in the mortgagor according to the form of mortgage (x), either absolutely both at law and in equity, or absolutely in equity, the legal estate remaining vested in the mortgagee (y) as a bare trustee for the mortgagor, who at any time may call for a re-conveyance, and he is entitled to the delivery of the mortgage deeds, and to cancellation of the incumbrance on the register, if there have been registration (z) ; but such payment after breach of condition does not revest the title, which can only be passed by a regular instrument of convey- ance from the mortgagee (a) ; nor, after such breach, can the mortgagor see the title deeds without paying the mortgagee his principal, interest, and costs (6). A mortgage to secure a given sum and future advances will not, as to advances made subse- quent to notice of a second mortgage, have priority over such second mortgage (c). As already stated, there may be several mortgages on the same property ; let us consider in what order these various securities may be realised. All persons who have acquired any interest in the property mortgaged by operation of law or other- wise in privity of title, have a right to disengage the property from all incumbrances in order to enforce their own claims (d) ; hence, any subsequent mortgagee can insist on redeeming the property with a view towards foreclosure, on offering to pay off all prior mortgagees, their debts, and interest (e). The question is. How do successive mortgages take precedence of each other ? to which the general answer is furnished by the maxim — qui prior est tempore, potior est jure — that ^is, any prior mortgagee (u) Matthews v. Wallwyn, 4 Ves. 1 1 8 ; (J) Chichester v. Marquis of Donegal, Withington v. Tate, L. K 4 Ch. 288 ; L. R. 5 Ch. 497. Heyman v. Dubois, L. R. 13 Eq. 158. (c) Hopkinson v. Rolt, 9 H. L. Cas. (x) Ante, p. 109, n. (a). 541 ; Menzies v. Lightfoot, L. E. 11 Eq. {y) Dobson v. Laud, 4 De G. & S. 459 ; Dunn v. City of London Brewery 575, 581. Co., L. R. 8 Eq. 155. (2) 7 Ann. 0. 20, s. 16 ; 8 Ann. u. 10, {d) Dawson v. Bank of Whitehaven, s. 3 ; 5 Ann. 0. 18, s. 10 ; 6 Ann. c. 35, L. R. 6 Ch. D. 218 ; Jackson v. Innes,, s. 27 ; 8 Geo. XL c. 6, B.-32 ; 17 & 18 1 Bli. 104 ; Jackson v. Parker, Amb, Vict. 104, s. 68. 687. (a) Pearoe v. Morris, L. R. 5 Ch. 227 ; (c) Fell v. Brown, 2 Bro. C. C, 276 ; 8 Eq. 217. Palk v. Clinton, 12 Ves. 48. MOBTGAGES — GENERAL PRINCIPLEfe. 113 is entitled to have the subject of the mortgage applied in satis- faction of his claim before any subsequent mortgagee (/). This rule, however, is governed by what is known as the doctrine of " tacking " .{g) — a principle which arose out of the two kinds of interest in property — legal and equitable — heretofore r'fecognised in Courts of Law and Equity respectively Qi). By this principle that mortgagee, who has or acquires both the legal and equitable estates or interests in the subject of the mortgage, takes prece- dence of every other mortgagee, no matter what his priority in point of time, provided he had no notice of any pre-existing mortgage when he made his advance (i). Thus, suppose land freehold, copyhold, or leasehold is successively mortgaged to A., B., and C ; then the legal estate is vested in A., who, to the amount of his debt, has also an equitable interest through which he'canhold against-B. and C, who have merely equitable inte- rests. If C. had originally no notice of B.'s mortgage, and A. assigns his mortgage to C, the latter is entitled to join or tack his debt to A.'s, and to hold the property against B. until both his own (C.'s) and A.'s debts are discharged {k). Or, again, let a moveable or chattel personal be mortgaged, without deed, to A., B., and C, successively, and possession be delivered to B., who, with C, has no notice of A.'s mortgage ; then, the legal interest is vested in B., who, to the amount of his debt, can hold against A. and C, who have merely equitable interests, and if B. assigns his moi-tgage with possession to C, the latter can tack and hold the property against A., until both his own (C.'s) and B.'s debts are discharged (Z). The principle of tacking extends not only to mortgages but to incumbrances in general, which have been created on a given (/) Mackreth v. Symmons, 15 Ves. Russell Road, L. R. 12 Eq. 78. 354. (k) Brace t>. Duchess of Marlborough (g) By s. 7, 37 & 38 Vict. c. 78 tack- 2 P. Wms. 491 ; Young v. Young, L. b! ing was abolished ; but this section was 3Eq. 801; Bajcer v. Harris, 16 Ves. repealed and the old law restored by s. 397. 129, 38 & 39 Vict. 0.87. {I) Daniel v. Russell, 14 Ves. 392; {k) Wortley v. Birkhead, 2 Ves. Dearie d. Hall, 3 Russ. 1, 22 ; Love- 573. ridge f. Cooper, 3 Russ. 30, 58. (i) Marsh v. L«e, 2 Vent. 337 ; In re 114 FUNDED SECUEITIES OR SECURITIES ON PROPERTY. subject of property upon the faith and security of which advances have been made (m) ; but the principle is inapplicable where there is no existing debt or legal estate (n). So far we have considered several mortgages of the same property, and have tacitly assumed that that property more than covers the first debt to be paid off; we have next to in- quire into the relations that arise when several mortgages, each comprising different property, are made by the same owner. Supposing the mortgages are all to different persons, the mort- gagor will stand to each mortgagee in the relations already de- scribed. Suppose, however, that A. mortgages to B. Whiteacre for £1000, and Blackacre for £2000, and that after breach of condi- tion A. offers to pay off the £2000, and so extinguish the mortgage on Blackacre, B. cannot be compelled to part with the latter security unless A. at the same time offer to pay off the £1000 due on the security of Whiteacre. In other words, a mortgagee is entitled to hold all securities as against a mortgagor, until his advances are discharged or adequately covered ; this prac- tice is called the consolidation of mortgages, and obtains with mortgages of personal as well as of real property (o), or though the property be of different kinds (p), or though the legal estate ' be not conveyed (q). It avails in favour of the holder of several mortgages created by the same person, whether he claim as an original incumbrancer, or through derivative title, as assignee or otherwise ; and it avails against all parties standing in the place of the mortgagor no less than against the mortgagor him- self. Thus, the purchaser of the equity of redemption of a particular mortgage cannot redeem without redeeming all mort- gages created by the same mprtuagor, and united in the holder of the particular mortgage, whether that union take place before (m) Averall v. Wade, IJoyd & Ch. 419 ; Jones v. Smith, 2 Ves. 372. Gool, E. 252 ; Matthews v. Cartwright, (p) TasseU v. Smith, 2 De. G. & J. 2 Atk. 347. 713 ; Craoknall v. Janson, W. N. (1879) (n) In re Kirkwoods, 1 L. R. Ir. 42. 106. (S) Neve v. Pennell, 3 L. J. Ch. 19. (o) Demandray v. MetcaU, Pre. in MORTGAGES — GENERAL PRINCIPLES. 115 or after the purchase, and whether with or without notice of the other mortgages (r). As between mortgagor and mortgagee, the principle is through-going ; so, as between subsequent mort- gagee and prior mortgagees ; so, as between second mortgagee and holder of prior mortgage, who, without notice of second mortgage, obtains transfer of third, or other subsequent mort- gage, but otherwise if there be such notice. Thus, where A. mortgaged Whiteacre first to B., then to C, and subsequently- mortgaged Blackacre to D., who, at the time of making his ad- vance, had notice of C.'s mortgage, it was held that D., having obtained a transfer of B.'s mortgage, could not consolidate as against C. (s). A mortgagee who receives the assignment of a debt due to the mortgagor after notice of the latter's insolvent position, is not permitted to consolidate (<). Besides tacking and consolidation, there is another mode of obtaining priority, viz., by greater diligence. Thus, when a subsequent mortgagee, without notice of a prior incumbrance at the time of advancing his money, gives notice of his charge to the trustee or other person in whom the legal interest is out- standing, he will be entitled to rank before a prior mortgagee wlio has omitted to give such notice (u). So, an incumbrancer, who gets the first stop-order on a fund in court, gains priority over all other incumbrancers on the same fund {x), and that, whether the fund be carried to a separate account, or be un- divided; hence, a mortgagee, who obtained a stop-order on a general fund when undistributed, was allowed priority over another mortgagee, who, on a subsequent order for distribution, obtained a stop-order against the particular fund {y). It is a general principle that a Court of Equity will not decree specific performance of a mere agreement to advance money {z), but a decree may be obtained for the specific per- (r) Bevor v. Luck, L. R. 4 Eq. 537. {y) Ward v. Booth, L. R 14 Eq. 195. (a) Baker v. Gray, L. R. 1 Ch. D. 491. As to priority under Solicitor's Act 23 (e) Ex parte Hodgkin. In re Softley, &; 24 Vict. c. 127, s. 28. See Faithful! L. R. 20 Eq. 746. v. Ewen, L. R. 7 Oh. D. 495. (v) Foster v. Cookerell, 9 Bli. 375, 376. (s) Larios v. Bonany y Gurety L (a;) Lister i;. Tidd, L. R. 4 Eq. 462. R. 5 P. C. 346. I 2 116 FUNDED SECURITIES OR SECURITIES ON PROPERTY. formance of an agreement to execute a mortgage in considera- tion of an existing debt, or where an actual advance has been made {a), and that, though the mortgage contain an immediate power of sale (6). A mortgage is extinguished by a pure and simple purchase by the mortgagee of the equity of redemption, and one purchasing an equity of redemption cannot set up a prior mortgage of his own, nor, conversely, a mortgage which he has got in against subsequent incumbrances of which he had notice (c). This last proposition is thus interpreted : — " In the case of a purchase from the oVner of an equity of redemption, in which the purchase-money is partly applied in paying off incumbrances, the purchaser with notice, whether actual or constructive of other incumbrances, is not, in the absence of any contemporaneous expression of intention, en- titled as against the other incumbrancers, of whose securities he has notice, to say afterwards that the incumbrances so paid off' are not existing" (d). But it is otherwise if there be a contemporaneous expression of intention to keep the incumbrances on foot; hence, where on a decree for foreclosure, the mortgagor's trustee in bank- ruptcy assigned the equity of redemption to a mortgagee, and the deed of assignment expressly provided that the same should be subject to the mortgagee's claim, it was held that there was a sufficient intention to keep the incumbrance alive (e). A honA fide subsequent mortgagee, who becomes a purchaser under a prior mortgagee's power of sale, acquires an irredeemable title (/) ; but a mortgagor who so purchases will be considered to have only paid off the debt due to the vendor, and will hold the property subject to all other charges (cf). {a) Ashton v. Comgan, I^. R. 13 Eq. [d) Adams v. Angell, I. R. 5 Ch. D. 76 ; Hermann v. Hodges, L. R. 16 Eq. 634, per Jeasel, M. R. 18. (e) Ibid. (b) Yardley v. Holland, L. R. 10 Ch. (/) Shaw v. Bunny, 2 De G. J. & S. 428. 468 ; Dicker v. Angerstein, L. E. 3 D. (c) Toulmin v. Steere, 3 Mer. 210 ; 600. O'Loughlin v. Fitzgerald, I. R. 7 Eq. {g) Otter v. Lord Vaux, 26 L. J. Ch. 483. 734. MOETGAGES GENERAL PRINCIPLES. 117 We have said that a mortgagor's equity of redemption be- comes extinguished by decree for foreclosure absolute (h) ; there- upon the mortgagor forfeits his title to the estate, though it still lies in the discretion of the Court to allow him to redeem as a matter of favour. The granting of this favour, or the opening of the foreclosure, as it is called, depends upon the circum- stances of each particular case ; amongst the circumstances of most -weight are the promptness with which the mortgagor claims indulgence, great difference in value between the amount of the debt and the worth of the estate, accident in non- payment of what was due, the fact that the property is a family estate (i). To insure precise payment, interest is often reserved at a certain percentage, reducible to a lower rate, if paid punctually, and, under such a stipulation, the higher rate may be recovered in the event of the interest falling in arrear ; but, if it were stipulated that a certain rate of interest should be reserved, and, on default of due payment, a higher rate should be charged, such higher rate could not be recovered in the event of default, because it is in the nature of a penalty, which will not be en- forced (k). The reservation, however, of a right to have full payment of money actually due on an existing contract, should there be a failure to pay a smaller sum on a given day, cannot be treated as a penalty (I). The seller or mortgagor of land, or chattels, real or personal, or choses in action, conveyed or assigned to a purchaser or mortgagee, or the solicitor or agent of any such seller or mort- gagor, who after the 13th August, 1859, conceals from the pur- chaser or mortgagee any settlement, deed, will, or other instru- ment material to the title of the property sold or mortgaged, or any incumbrance thereon, or who falsifies any pedigree upon which the title does or may depend, with intent in any of such (A) Ante, p. 111. Go. ; Ex parte Hulse, L. E. 8 Ch. (i) Campbell v. Holyland, L. R. 7 10 — 22 ; Parfitt v. Chambre ; Ex parte Ch. D. 166. D'Alteyrao, L. R. 15 Eq. 36. (i) Eyre v. Hughes, L. R. 2 Ch. D. {I) Thompson v. Hudson, L. E. 4 H. 115 ; In re Daghenham (Thomas) Dock L. 1. 118 FUNDED SECURITIES OR SECURITIES ON PROPERTY. cases to defraud, shall be guilty of a misdemeanour, and being found guilty, shall be liable to fine or imprisonment for any time not exceeding two years, with or without hard labour ; and also liable to an action for damages at suit of the purcl^aser or mortgagee, or those claiming under such purchaser or mortgagee for loss sustained by such concealment or falsification ; but no prosecution under the above provisions is to be commenced without the sanction of the Attorney-General or Solicitor- General, to be given after notice to the accused of the applica- tion for leave to prosecute (m). (m) 22 & 23 Vict. c. 35, a. 24 ; 23 & 24 Vict. c. 38, h. 8. 119 CHAPTER XVII. MORTGAGES OF FREEHOLDS. As already mentioned (a), mortgages may be divided into — I Mortgages of Immovables. U. Mortgages of Movables. We wiU begin with the former. Mortgages of immovables or lands embrace — 1. Mortgages of freeholds ; 2. Mortgages of leaseholds for years ; 3. Mortgages of copyholds — the mode of creating, and the nature of each of which, except so far as treated of in our previous general observations, we shall now proceed to explain. The form of mortgage of freehold estates now in ordinary use is a grant by the mortgagor to the mortgagee in fee simple, subject to a proviso, that, if the money is paid on a day named, which is usually six months from the date of the deed, the mortgagee shall re-convey the property to the mortgagor. Then follow covenants by the mortgagor with the mortgagee for pay- ment of principal and interest on the appointed day, and if the principal isnot paid on that day, for the future payment of interest half-yearly; then, if the property consists of houses or buildings, a covenant for assurance, with provisions enabling the mortgagee to insure, in case of the mortgagor's default, then covenants for title, which are always absolute, and lastly, the power of sale. It is sometimes agreed that the mortgagor shall have the right to remain in possession until default made in payment of principal or interest, or waste, or ather injury committed, in which case a provision to that effect should be inserted in the mortgage (a) Ante, p. 110. 120 FUNDED SECUEITIKS OR SECURITIES ON PEOPERTT. instrument (b). The same is executed by being signed and delivered by the mortgagor to the mortgagee, who should there- upon have it duly registered if the lands mortgaged be situate within a register county (c). A mortgage of freeholds must be by deed (d), which, in the absence of any agreement to the contrary, is prepared, after- searches for incumbrances and requisitions usual on a transfer of land, by the mortgagee or his solicitor from the deeds and an abstract of title going back for sixty years furnished by the mortgagor (e), by whom the expenses of both abstract and mortgage instruments are borne (/). i A mortgage of land registered under the Land Transfer Act (g), to aA^ail against subsequent registered dealings with the land, must be in the form prescribed by the rules and orders, dated 24th December, 1875 (h). The respective rights and liabilities of the mortgagor aid mortgagee of freeholds are governed by the general priaciples already laid down (i), and by special statutes and rulbs only . applicable to incumbrances on land ; these it will now be our business to expound. In the absence of express powers usually conferred on the mortgagee of lands, and if the statute be not otherwise directly or indirectly excluded, it is enacted that mortgagees may at any time after the expiration of one year from the time the principal money shall have become payable according to the terms of the deed, or after any interest on such principal money shall have been in arrear for six months, or after any omission on the part of the mortgagor to pay any premium on any insurance for which he was liable under the deed, sell, insure, or obtain, the (6) Ante, p. 110. -when a 20 years' may be a good title (c) In England, only Middlesex, York- under b. 2, subs. 2, see Bolton «. The shire, and Kingston-on-Hull ; in Ireland, School Boaj'd forLondon, L. K. 7 Oh. D. the whole country, post, pp. 238, 239. 766. (d) 8 & 9 Vict. 0. 106. (/) Wilkinaon v. Grant, 25 L. J. C. (e) S. 1, 37 & 38 Vict. o. 78, substi- P. 233. tutes 40 for 60 years' title on a sale, (g) 38 & 39 Vict. c. 87. apparently leaving the longer period (h) 11 W. N. 34. still proper on other transfers. As to [i) Ante, pT^. 109 — 118. MORTGAGES OP FREEHOLDS. 121 appointment of a receiver of any hereditaments mortgaged to them by deed as effectually as if conferred hy the party creating the charge (k). The receipts of the persons exercising the above power of sale are to be sufficient discharges to the purchaser (J), but six months' notice in^ writing is to be given to the person entitled to the property subject to the charge before a sale is to take place (m) ; the proceeds of a sale are to be applied to payment — 1st, of the expenses incident thereto ; 2nd, of the interest and costs and principal money due ; 3rd, and any remaining balance is to go to the person entitled to the property subject to the charge (n); the person exercising the power of sale is empowered to convey all the estate and interest of the person who created the charge (o), and entitled to call for the title deeds and a conveyance of the legal estate, if that be outstanding in a trustee (p). A receiver may be appointed by the person entitled to obtain such appointment from amongst any persons named in the deed of charge for that purpose, or, if no such persons be named, then, after ten days' notice in writing to the person entitled to the pro- perty to appoint a receiver, and his default to comply with such notice (q) ; the receiver is to be deemed the agent of the mort- gagor (r), and is given full power to demand, receive, and give effectual receipts for all the rents, issues, and profits of the property over which he is appointed (s) ; the moneys received hy him are to he applied to the payment— 1st, of all taxes, and assessments whatsoever, of his own commission, and of the premiums on insurance, if any ; 2nd, of interest accruing due on the principal money secured; 3rd, of the balance to the person entitled to the property subject to the charge (t). On the execution of the mortgage, the mortgagee in the (k) 23 & 24 Vict. c. 145, ss. 11, 32. (p) Ibid., s. 16. [1] Ibid., s. 12. iq) Ibid., s. 17. (m) Ibid., a. 13. (r) Ibid., s. 18. (b) Ibid., s. 14. («) Ibid., a. 19. (o) Ibid., s. 15. (t) lUd., a. 23. 122 FUNDED SECURITIES OR SECURITIES ON PROPEKTY. * absence of any stipulation to the contrary may enter into possession of the tenements (u) ; if he refrains from doing so, the mortgagor becomes his tenant at wUl, quodam modo, and, on breach of condition, his tenant at sufferance, quodam modo (ar), and may at any time thereafter be ejected by him without notice (y). So long, however, as the mortgagor is permitted to remain in possession, he is entitled to receive the rents and profits for his own use without any liability to account to the mortgagee (z), and, if need be, to distrain for the same (a) ; he is also entitled to cut timber unless the estate would be thereby rendered a scanty security (6) ; and now, a mortgagor entitled for the time being to the possession or the receipt of the rents and profits of any land as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person (c). When a mortgage is effected for a time certain, neither mortgagor nor mortgagee can enforce payment before the appointed period ; though if the creditor accept payment before such period the condition will be per- formed (d). If default in payment be then made, the mortgagee is entitled to six months' notice of the mortgagor's intention to pay off the security, or to six months' interest in lieu of such notice (e) ; but no such right accrues to a mortgagee who him- self demands payment, and that, even from the representatives of a deceased mortgagor; thus, it was held that a mortgagee («) Doe d.Roylance v. LigMfoot, 8M. Hampton v. Hodges, 8 Ves. 105, &W. 553. (c) 36&37Vict. c. 66, B. 25, 8ub-8.5; (x) I. Fisher on Mortgs., 3rd ed., p. rairclough v. Marshall, L. R. i Ex. D. 442 ; I. Pow. Mortgs. 167 b. n. 37. (y) Doe d. Roby v. Maisey, 8 B. & (d) Day v. Day, 31 Beav. 270 ; C. 767. Browne v. Loekhart, 10 Sim. 424; (s) Drammond i: Duke of St. Albans, Keene n. Biecoe, L. E. 8 Ch. D. 201 ; 5 Ves. 438. Seaton v. Twyford, L. R. 11 Eq. 591. (a) Trent v. Hunt, 9 Exch. li. (e) Burgoyue v. Spurling Cro. Car. (6) Usbome v. Usbome, 1 Dick, 75 ; 283. MORTGAGES OF FREEHOLDS. 123 who had filfed a hill for the administration of the estate charged and was thereupon paid his principal, interest, and a sum for costs hy a surety of the deceased mortgagor was not entitled to six months' interest in lieu of notice (/). If money secured on mortgage he made payable to the mortgagee, his heirs, execu- tors, administrators or assigns, the mortgagor, on the death of the mortgagee, has an option to pay either the heir (who, how- ever, will be a trustee for the executor or administrator), or the executor or administrator, provided paynient he punctually made on the day named in the agreement between the original parties ; but if no such day be named, or if the day named be past, the mortgagor has no option, and must pay the personal not the real representative ( g). Until foreclosure or release of the equity of redemption, the heir of the mortgagee is only a trustee for the mortgagee's executors ; but after foreclosure or release of the equity of redemption the estate belongs to the heir for his own benefit Qi). On payment of principal and interest the mortgagor is entitled to a reconveyance of the property mortgaged, either by the mortgagee or, in case of his death, by his real or personal representative (i). Under the Build- ing (h) and Friendly (?) Societies' Acts, a prescribed form of receipt formoneys advanced by the society vacates the mortgage or charge, and revests the legal estate in the owner of the equity of re- demption or person best entitled to call for the legal estate (m). A mortgagee who enters into possession of the mortgaged property in his character of mortgagee is bound to account for the rents and profits thereof to the mortgagor ; both those which he actually received and those which he might have received but for his wilfal default {n) ; and in taking such (/) Letts n. Hutchins, L. E. 13 Bq. & 38 Vict. c. 42, s. 42. 176. . (I) 38 & 39 Vict. o. 60, s. 16. (g) Thomborough v. Baker, 1 Ch. (m) Pease v. Jackeon, L. E. 3 Ch. Cas. 283. 576 ; Wright v. Monarch Investment (A) Thompson v. Grant, 4 Mad. 438. Building Society L. E. 5 Ch. D. 726. (i) 37 & 38 Vict. c. 78, s. 4 [I. Dart (n) Ward v. Carttar, L. R. 1 Eq. 79 ; V. & P. 5th ed. p. 16; IL Fisher Parkinson w. Hanbury, L. E. 2 H. L. 1 ; Mortgs., 3rd ed.p. 1006]. Elmer «. Creasy, L. E. 9 Ch. 69 ; Mayer (4) 6 & 7 WiU. IV. c. 32, s. 5 ; 37 v. Murray, L. R. 8 Ch. D- 424. 124! FUNDED SECTJRITIES OE SECURITIES ON PROPERTY. account the Court will under certain circumstances allow annual rests, that is, wiU charge the mortgagee with compound interest on the balance that has come to his hands from such rents and profits, after deduction of the interest due on the mortgage, and any other expenses that may be allowed (o). Thus, if the mortgagee enter into possession when no arrears of interest are due, or if any agreement exist between the parties by which interest in arrear is converted into principal, or if a mortgagee who, on entering into possession, was not liable to account with annual rests, continue in possession after a settled account by which it appeared either that no interest was due or that any interest which was due was satisfied as interest by being converted into principal — in these several cases annual rests will be made (p). So, though interest is in arrear, if part of the mortgaged property is sold by the mort- gagee, producing more than the interest due, there must be a rest, and the surplus applied to reduction of principal ; it cannot be retained as a fund to meet future interest {q). Generally, annual rests are not required in England (though it is otherwise in Ireland, where they are made half- yearly without special direction by the Court (r) ) — thus, they are not required where the interest of the mortgage is in arrear at the time when the mortgagee takes possession (s), even although the rents and profits may exceed the annual interest (<), nor until the principal debt is entirely paid off (u). A mortgagee in possession is allowed his expenses for aU repairs necessary for the support of the property {v), and for his costs in defending the title thereto {w), but not for general improvements made without the acquiescence or consent of the mortgagor {x) ; and lo) Thomson v. Hudson, L. E. 10 ham v. Walker, 11 Jr. E. Eq. 415. Eq. 497 ; Douglas v. CulverweU, 4 De (s) Stephens v. Willings, 4 L. J. N. S. Gr. P. & J. 20. 48i ; Wilson v. Cluer, uhi xwpra. (p) Wilson V. Cluer, 3 Beav. 136 ; (t) Baldwin v. Lewis, 4 L. J. N. S. Yates V. Humbly, 1 Mad. 14 ; Gotham Oh. 113 ; Shepherd ti. Elliot,4Mad. 254. V. West. Rolls, 15th Nov., 1836, E. L.; («) Wilsons. Cluer, wftisitpm; Scheie- Thomecroft v. Crookett,2 H. L. C. 239. field v. Look, 32 Beav. 439. (q) Thomson v. Hudson, L. E. 10 Bq. (v) G-bdfrey v. Watson, 3 Atk. 518. 497. (w) Lomax v. Hide, 2 Vem. 184. (r) Davis v. May, 19 Ves. 382 ; Gra- (x) Sandon v. Hooper, 6 Beav. 246. MORTGAGES OF FREEHOLDS. 125 in no case will a Court of Equity permit a mortgagee, merely as such, to commit waste or do damage to the estate, as, for example, by pulling down cottages (y), or opening mines, without being answerable for the damage or profits {z). The mortgagee is bound by leases made before the mortgage, but he may recover in ejectment without notice to quit against a tenant who claims under a lease granted by the mortgagor without his privity after the mortgage (a.) He may, however, adopt such a lease, and once he has expressly or impliedly recognised the claimant as tenant, he cannot go back upon the transaction, but is thence- forth invested with the rights and liabilities of lessor under the agreement (6.) From the time a mortgagee enters into possession he becomes entitled not only to future rents but also to any arrears of rent that may be then due {c), and, after a tenant has notice of the mortgagee's claim, he is liable to the latter, for such rents and arrears {d) but he is not liable for rents due and paid to the mortgagor before such notice, though, if he pay the mortgagor in advance, and the mortgagee enters into possession before the rent falls due, he cannot resist the mortgagee's demand for the amount on its falling due (e.) As the debts of a deceased person are in the first instance payable out of his personal estate, it was formerly held that an executor or administrator was bound to pay off the testator or intestate's mortgage debts, even when the property charged was freehold (/ ). To this rule there were some exceptions ; thus, if the mortgage debt had not been contracted by the deceased per- son, but the land had come to his hands charged, then, as his personalty had not had the benefit of the advance, so it was not (y) lUd. 4 Ann. c. 16. 16, s. 9. (z) Hughes V. WUliams, 12 Ves. 493 ; (d) Bawson v. Dicke, 7 A. & E. 451. Thomycroft v. Crockett, 16 Sim. 445 ; (e) Cook v. Guerra, L. E. 7 C. P. Millett V. Darey, 31 Beav. 470. 132 ; De Nicholls v. Saunders, L E (a) Keech v. HaU, Doug. 21. 5 C. P. 589. (i) Smith V. Bgginton, L. E. 9 C. P. (/) Howell «. Price, 1 P. Wms. 291 ; 145 ; Gibbs v. Cruiokshank, L. B. 8 C. Pookley v. Paekley, 1 Vern. 36 ; Bel- P. 454. vedere v. Eochfort, 5 Bro. P. C. 299. (c) Moss V. Gallimore, Doug. 279 ; 126 FUNDED SECURITIES OR SECURITIES ON PROPERTY. charged with its repayment, but the land, in the absence of a contrary provision by settlement or will, was first subject to the debt in the hands of the heir or devisee (g). Again, if a mort- gage were effected under a power to mortgage, and the person executing the power pay off the mortgage, he will be an incum- brancer for the amount so paid off, and the land would be the primary fund for discharge of the incumbrance (h). The same rule obtained when one mortgaged as surety, as, for example, when husband and wife joined in mortgaging the wife's freeholds ; in such case the money, whether paid to her and her husband or to him alone, is pri/md facie considered to be borrowed for his advantage, and his estate is first liable, even where the husband subsequently pays off the mortgage and takes an assignment in trust for himself (i) ; but the wife's land may be rendered primarily liable to the debt by extrinsic evidence that the mortgage money was paid for her benefit (/). Under Locke King's Act (k), and its two amending Acts (I), lands in mortgage or subject to vendor's lien for purchase- money are, on the death of the mortgagor or vendor, and in the absence of a contrary intention signified by him, now charged with the mortgage debt or purchase-money. The effect of these enactments is as follows : By 17 & 18 Vict. c. 113, it is enacted that the heir or devisee of any person dying after 31st Decem- ber, 1854), seized of or entitled to any estate or interest in any land charged at the time of his death with the payment of any sum or sums of money by way of mortgage, and not signifying any contrary or other intention by his will, or deed, or other document, shall not be entitled to have the mortgage debt dis- charged or satisfied out of the personal or any other real estate of such person, but that the land so charged shall, as between the different persons claiming through or under the deceased {g) Lawson v. Hudson, 2 Bro. C. C. Vem. 437. 77 ; Soott V. Beecher, 5 Mad. 96. {j} Hudson v. Carmichael Kay, 613. (h) Jenkinsoni). Haroourt, Kay, 688 ; {*) 17 & 18 Vict. c. 113. Expwrte Digby, .Tac. 235 ; In re Betteris {I) 30 & 31 Vict. c. 69 ; 40 & 41 Vict. Trust Estates, L. B. 12 Eq. 553. c. 34. (j) Huntingdon v. Huntingdon, 2 MORTGAGES OF FREEHOLDS. 127 person, be primarily liable to the payment of all mortgage debts with which the same shall be charged, every part thereof accord- ing to its value bearing a proportionable part of the mortgage debt charged on the whole thereof. The Act does not interfere with nor affect the rights of the mortgagee to obtain full pay- ment or satisfaction out of the personal estate of the person so dying as aforesaid or otherwise (m) ; it applies to copyholds (n) and to equitable mortgages by deposit and memorandum (o), but not to vendor's lien (p), nor to leaseholds (q), nor semble to land devised upon trusts for conversion and taken in its converted state (r). In a mortgage of both realty and personalty, the realty is not primarily but only rateably liable to the payment of the mortgage debt (s). What amounts to an effectual declaration that land mortgaged should be exonerated from the debt is an extremely difficult question ; it is, however, a general rule that a " contrary inten- tion " is signified by a testator providing a fund of any descrip- tion whatever for payment of his debts (t). It has been held that a direction in a will that all testator's debts should be paid by his executors out of his estate, followed by a gift of all testator's real and leasehold estates (which were subject to a mortgage) to trustees, who with testator's wife were also named executors, was not a sufficient expression of a con- trary intention within the meaning of the statute (u) ; but that a bequest of personalty subject to the ■payment thereout of all the testator's debts, following a devise of land in mortgage was a suf- ficient indication of such intention (v), and so was a specific devise of the equity of redemption of one of two estates com- prised in the same mortgage, the equity of redemption in the (m) Lipscomb v. Lipscomb, L. E. (r) Lewis v Lewis, L. R. 13 Eq. 218. 7 Eq. 501. (s) Trestrail v. Mason, L. R. 7 Ch. D. («) Piper V. Piper, 1 Johns. & H. 91. 655 ; Leonine v. Leonine, L. R. 10 Ch. (o) Pembroke v. Friend, 1 Johns. & D. 460. H. 1.S2. (t) Maxwell v. Hyslop, L. R. 4 Eq. (p) Barnwell v. Ironmonger, 1 Drew. 407 ; but see In re Newmaroh ; Ntw- & S. 25.S. march v. Storr, L. R. 9 Ch. D. 12. {q) In re Wormsley's Estate ; HaU (u) Woolstoncroft v. Woolstonoroft, K. Wormsley.L. R. 4 Ch. D. 665 ; Solo- 2 De G. F. & J. 347. mon r. Solomon, 32 L. J. Ch. 473. (v) Mellishr.VaIlens,2 J.&Hem.l94. 128 FUNDED SECURITIES OR SECURITIES ON PROPERTY. other being allowed to pass under a residuary devise, and thus the latter estate made liahle for the whole debt (w). Since these decisions, it has been enacted that a general direc- tion in a will for payment of a testator's debts out of his per- sonal estate is not, as to wills of persons dying after 81st Decem- ber, 1867, to be deemed an expression of an intention contrary to the mle established by Locke King's Act, unless such con- trary or other intention be further declared by words expressly or by necessary implication referring to all or some of the testa- tor's debts or debt charged by way of mortgage on any part of his real estate («). In the construction of the statute the word mortgage extends to vendor's lien for purchase-money, the pur- chaser being a testator (y). " If then a freehold or copyhold estate is contracted to be sold, and the purchaser dies before the whole of the purchase-money is paid, and by his will he makes a general or specific devise of such estate, the purchased- estate wrill be the primary fund for the discharge of the unpaid pur- chase-money. If, however, the purchaser dies intestate, his personal estate will be the primary fund for this purpose " («). The Act extends to a wiU made before 1st January, 1868, direct- ing all debts to be paid out of testator's estate {a). It wUl be observed that the 30 & 31 Vict. c. 69, speaks only of wills; where the mortgagor declares his intentions a.s to the discharge of the mortgage debt in a deed or other non-testamentary docu- ment the exoneration of the estate charged will depend upon the construction put upon the 17 & 18 Vict. c. 113, and if a vendee die intestate the provision as to vendor's lien has no application (6). During the year 1877 an Act (c) to amend Locke King's Act, and its amending Act, was passed and came into operation on (ifi') Brownson v. Laurence, L. K. 493. 6 Eq. 1. See also Sackvill v. Smyth, (s) Prideaux, Precede, in Convey. I. L. K. 17 Eq. 163 ; Ooote v. Lowndes, 470, 8th ed. L. E.. 10 Eq, 376. (a) Brownson v. Lawrence, «6i supra. (x) 30 & 31 Vict. c. 69 ; In re New- (6) Harding v. Harding, «6i swprti. march ; Newmarch v. Storr, L. E. 9 (c) 40 & 41 Vict. c. 34. The Act Ch. D. 12. does not extend to Scotland, s. 2. (y) Harding i;. Harding, L. K. 13 Eq. MOllTGAGES OV FKEEHOLDS. 129 the 1st January 1878, it provides as follows : The 17 & 18 Vict, c. 11 3, aud the 30 & 31 Vict. c. 69, shall, as to any testator or intes- tate dying after the 31st day of December, 1877, he held to extend to a testator or intestate dying seised or possessed of, or entitled to any land or other hereditaments of -whatever tenure, which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage or any other equitable charge, including any lien for unpaid purchase-money, and the devisee or legatee or heir shall not be entitled to have such sum or sums dis- charged or satisfied out of any other estate of the testator or intes- tate unless (in the case of a testator) he shall within the meaning of the said Acts have signified a contrary intention, and such contrary intention shall not be deemed to be signified by a charge of, or direction for, payment of debts upon or out of residuary real and personal estate, or residuary real estate (d). The principal changes introduced by this enactment seem to be these : — 1. The operation of Locke King's Act is extended to lands of eveiy tenure ; hence, leaseholds will in future be subject to the same rule as freeholds ; therefore Solomon v. Solomon (e), and that class of cases, cease to be law. 2. Locke King's Act and its amending Act are extended to charges on land by equitable charge, including lien for unpaid purchase-money as well as to charges byway of mortgage, and that whether the deceased died testate or intestate ; thus, Hard- ing V. Harding ceases to be law (/). 3. A charge of, or direction for, payment of debts due upon or out of residuary real and personal estate, or residuary leal estate,. shall not amount to a signification of a contrary or other intention within the meaning of the Acts. , It may not be here out of place to observe that a mortgage of laud without more passes the fixtures annexed to (g), and the trade profits and goodwill of any business carried on on the premises mortgaged (A.) ; but on and after 1st January, 1879, a (d) 40 & 41 Vict. 0. 34, s. 1. (. R. 8 Ch. D. {k) Casbome v. Soarfe, 1 Atk. 603 ; 628. Pawlett V. Attorney-General, Hardrea, (») 3 & 4 W, IV. c. 104. 465, 469. (o) Kennard v. Furtvoye, 2 Giff. 81, (0 3 & 4 W. IV. u. 105, 0. 2. MORTGAGES OF FREEHOLDS. L31 is by lapse of time, and this leads us to consider the Statutes of Limitation as bearing upon the relations of mortgagor and mort- gagee in general. The legislative enactments upon this subject are comprised in four Acts of Parliament, viz., 3 & 4 Will. IV. c. 27; 3 & 4 Will. IV. c. 42 ; 7 WiU. IV. & 1 Vict. c. 28 ; and 37 & 38 Vict. c. 57 ; of these, the second namedre lates to actions brought upon the covenants entered into, the other three relate to actions brought to recover the mortgage debt or mort- gaged land respectively. By ss. 3 — 5, 3 & 4 WUl. IV. c. 42, all actions of covenant or debt upon any specialty must be commenced and sued within twenty years after the cause of action, or within twenty years after any acknowledgment shall have been made, either by writ- ing signed by the party liable by virtue of any such specialty, or his agent {p), or by part payment or part satisfaction on account of -any principal or interest being then due thereon; or in case the person entitled to any such action be at the time the cause of action accrues within the age of twenty-one years, feme covert, non compos mentis [or beyond seas] (g), then within twenty years after such person shall come or be of full age, discovert, of sound memory [or returned from beyond seas] (r). By s. 28, 3 & 4 WiU. IV. c. 27, when a mortgagee shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage (s), the mortgagor, or any person claiming through him, shall not bring any action to redeem the mortgage but within twenty years next after the time at which the mortgagee obtained such possession or receipt, or within twenty years next after the time at which an acknowledgment in writing of the title of the mortgagor, or of his right to redemption, shall have been given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee or the person claiming through him; such acknowledgment, if {p) Forsyth v. Bristowe, 22 J. L. Ex. (»•) Pears v. Laing, L. R. 12 Eq. 41. 255. (g) Security in form of trust for sale (?) This privilege abolished 19 & 20 within this section, Locking v. Parker Vict. t. 97, !i. 10. L. R. 8 Ch. 30. K2 132 FUNDED SECURITIES OR SECURITIES ON PUOPERTY. there be several mortgagors, avails all equally, though only given to one ; but, if there be several mortgagees or persons claiming the mortgagee's estate or interest, such acknowledg- ment avails only against that one or more of such mortgagees or persons as have signed the acknowledgment, and does not give the mortgagor or mortgagors a right to redeem the mort- gage as against the person or persons entitled to any other un- divided or divided part of the money or land, or reiit (f) ; and the mortgagor is empowered, if the person giving the acknow- ledgment is entitled to a divided part of the land or rent, to redeem the same on payment, with interest, of a part of the mortgage money, which sliall bear the same proportion to the whole mortgage money as the value of the divided part of land or rent shall bear to the value of the whole land or rent com- prised in the mortgage. By s. 40, 3 & 4 Will. IV. c. 27, no action shall "he brought to recover any sum of money secured by any mortgage, judgment, lien, or otherwise charged upon or payable out of any land or rent but within twenty years next after a present right (u) to receive the same shall have accrued to some person capable of giving a discharge or release for or of the same ; or within twenty years after payment of some part of the principal money or interest thereon [x); or within twenty years after some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be pay- able, or his agent, to the person entitled thereto, or his agent (i/). By 7 Will. IV. & 1 Vict. c. 28, any person entitled to or claiming under any mortgage of land (z), may make an entry or bring an action to recover such land at any time within twenty years next after the last payment of any part of the principal money or interest secured by such mortgage, although more (i) Richardson v. Younge, L. E. 6 {y) Biiins v. Nichols, L. R. 2 Eq. Ch. 478 ; 10 Eq. 275. 256 ; GreenfeU v. Girdlestone, 2 Y. & («) Tarran ,;. Beresford, 10 01. & CoU. 676. Fin. 334. (z) Doe d. Palmer v. Eyre, 26 L. J. Q- («) Homan v. Andrews, 1 Ir. Eq. B. 431. Rep. N. S. 106. MORTGAGES OF FREEHOLDS. 133 than twenty years may have elapsed since the time at which his right to make such entry, or bring such action, shall have first accrued, anything in 3 & 4 "Will. IV. c. 27 notwithstanding (a). By s. 16, 3 & 4 Will. IV. c. 27, if a person be under the age of twenty-one years, /erne covert, non coTnpos mentis [or absent beyond the seas] (6) at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent (c) first accrues, then such person, or the person claiming through him, may make an entry or distress, or bring an action to recover such land or rent, at any time within ten years next after the time at which the person to whom such right shall have first accrued shall have ceased to be under any such disability, or shall have died (whichever of those two events shall have first happened) (d). By s. 17, 3 & 4 Will. IV. c. 27, the entry, distress, or action mentioned in section 16 must be brought within forty years next after the time at which the right to bring the same shall have first accrued, although the person entitled shall not have ceased to be under disability during the whole forty years, or although the term of ten years from the time at which he shall have ceased to be under disability, or have died, shall not have expired (e). By s. 18, 3 & 4 Will. IV. c. 27, when any person who is under any of the disabilities mentioned in section 16 at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent, shall have first accrued dies without having ceased to be under such disability, no time to make an entry or distress, or to bring an action to recover such land or rent beyond the said period of twenty years next after the right of such person shall have first accrued, or the said period of ten years next after the death of such person, shall be allowed by reason of any disability of any other person (/). (a) Doe d. Baddeley v. Massey, ?0 L. (d) Borrowa v. Ellison, L. R. 6 Ex J. Q. B. 434. 129. (6) Abolished, 19 & 20 Vict.c. 97, s. 10. (e) Doe d. Cprbyn v. Bramston, 4 A. & (c) Owen V. De Beau voir, 16 M. & W. E. 63 ; Fulton v. Creag, 3 J. & L. 329. 567, 568. f) Devine v. Holloway, 9 W. jg. 642. 134 FUNDED SECURITIES OR SECURITIES ON PROPERTY. By s. 14, 3 & 4 Will. IV. c. 27, when 'an acknowledg- ment (g) of title has been given to a person entitled to any land •or rent, or to his agent (h), in writing, signed by the person in possession or in receipt of the profits of such land, or in receipt of such rent, then such possession or receipt of or by the person giving the ackowledgment is to be deemed the possession or receipt of or by the person to whom or to whose agent such acknowledgment has been given at the time of giving the same and the right of such last mentioned person to make an entry or distress, or bring an action to recover such land or rent, shall be deemed to have first accrued at and not before the time at which such acknowledgment was given. By s. 25, 3 & 4 Will. IV. c. 27, the right of a cestui que trust, or any person claiming through him, to bring an action against his trustee, or any person claiming through him, to recover any land or rent vested in such trustee upon any express trust (i), shall be deemed to have first accrued at and not before the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him. A security in form of a trust for sale is within this section (k), but not a mere constructive trust (I), nor vendor's lien for purchase money (m), nor general charge of debts on real estate, with direction to raise sufficient, by mortgage or otherwise, to pay them (n). ^ ^^XP°Li- ^T '^""^ "• ^'l™™'^^' 6 M. (i) Locking V. Parket, L. H. S Oh. & W. 295 ; Incorporated Society u. App. 30 Richards, 1 Dru. & W 290. (l) iToung v. Lord Waterpart, 16 L. (h) Goode ■(. Job, 28 L. J Q. B. 1 ; J. Uh. 683 Man v. Rioketts, 13 L. J. Ley 1;. Peter 27 L. J. Ex 239 . joy^g N. S. Ch. 194 ; Harris v Hairis, 29 V. Hnghes 24 L. J. Ex. 113 Beav. 110 ; Petre v. Petre, 1 Drew. 393. yt) Mutlow V Bigg L R 18 Eq. 246. (m) Toft v. Stephenson, 21 L. J. Cb. By s. 25, sub-s. 2, 36 & 37 Vict. c. 66, no 129. claim of a cestui que trust against his (n) Dickenson v. Teasdale 32 L J trustee for any property held on an ex- Ch. 37. See also Knox v Gve l'k. press trust is to be barred by any statute 5 H. L. 666 ; Bourdiek v. Gairiok, L. of limitations. See also Lewis v. Dim- R. 6 Ch. 233 ; Stone v Stone I; E 5 combe 30 L. J Ch. 732 5 Matthew ^. gh. 74 ; Watson v. Woodman," L.E. 20 Brise, 14 Beav. 341 ; s. 10, 3/ & 38 Vict. Eq. 721 ; Cunningham v. Foot, L. E. 3 c. 57, post, p. 135. App. Cas. 974. MORTGAGES OF FREEHOLDS. 135 By s. 42, 3 & 4 Will. IV. c. 27, no arrears of rent or interest npon any snm of money charged iipon or payable out of any land or rent, or any damages in respect of such arrears, shall be recovered by distress or action but within six years next after the same shall respectively 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, signed by the person by whom the same was payable or his agent ; provided that a person entitled to a subsequent mortgage or incumbrance on any land may recover in an action brought within one year after a prior mortgagee or incumbrancer shall have been in pos- session of such land, or in receipt of the profits thereof, the arrears of interest which shall have become due during the whole time such prior mortgagee or incumbrancer was in such possession or receipt, although such time may have exceeded six years. The 37 & 38 Vict. e. 57 (Real Property Limitation Act, 1874), which, however, only commences and comes into operation on 1st January, 1879, modifies the foregoing provisions of 3 & 4 Will. IV. c. 27 in the following respects : — 1st. It substitutes twelve for the twenty and six for the ten years' Limitation that occiir in the earlier statute (ss. 3, 7, 8, 9). 2nd. It allows no time for absence beyond seas (s. 4), a privilege which had already been abolished in general by 19 & 20 Vict. c. 97, s. 10 (o). 3rd. It substitutes thirty for forty years (allowed by s. 17, 3 & 4 WilL IV. c. 27) as the utmost allowance for disabilities (s. 5). 4th. It declares that no action shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent, and secured by an express trust, or to recover any arrears of rent or of interest in respect of such sum of money or legacy, or any damages in respect of such arrears, except within the time the same would be recoverable if there were no such trust (s. 10). The foregoing provisions determine the time within which the (o) Pardo v. Bingham, L. E. 4 Ch. 735. 136 FUNDED SECURITIES OR SECURITIES ON PROPERTy. following classes of actions must be brought : — (1) Action on covenant, (2) mortgagor's action to redeem, (3) mortgagee's action to recover money secured by mortgage, (4) action by person entitled to or claiming under any mortgage to recover land mortgaged, (5) action to recover arrears of rent or interest upon money charged upon or payable out of any land or rent, or to recover damages in respect of such arrears. Each of the above actions becomes barred by lapse of time computed from the period : — (1) when the cause of action accrued, (2) when a written and signed acknowledgment of liability was last given, (3) when any principal or interest was last paid, (4) when a party ceased to be under disability. Under the statutes of William IV. a cause of action accrues: — (1) to a covenantee on breach of the covenant by the covenantor {p) ; (2) to a mo;'t- gagor, from the time the mortgagee (after default made in pay- ment of the mortgage debt) obtained possession or receipt of the profits of the land, or of the rent mortgaged {q) ; (3) to a mort- gagee (1") to recover money secured by mortgage, from the time a present right to receive the money shall have accrued to some person capable of giving a discharge or release for the same (r) ; (2") to recover the land or rent mortgaged, from the time the mortgagee might have entered upon the land (s), i.e., from exe- cution of the mortgage in the absence of a stipulation that the mortgagor may remain in possession ; (4) to a person entitled to arrears of rent or interest upon money charged upon or payable out of any land or rent, from the time the rent or interest fell due {t). In the first three cases the suit may be instituted within twenty years, in the last case within six years from the time the cause of action accrued (m). The restriction to recovery of six years arrears of rent or interest applies to suits instituted by the party entitled ; hence, in a foreclosure suit a mortgagee can only recover six years' arrears of interest (a;), and the same (p) 3 & 4 Will. IV. c. 42, SB. 3—5. («) 3 & 4 Will. IV. c. 27, s. 42. (?) 3 & 4 Will. IV. 0. 27, B. 28. (u) Pears v. Laing, L. R. 12 Eq. 41. (r) lUd., b. 40. (x) Hunter v. Nockolds, 1 Mao. & (s) 7 Will. IV. & 1 Vict. u. 28. Gif. 641. MORTGAGES OF FREEHOLDS. 137 rule obtains where a mortgagee presents a petition for discharge of his debt out of money paid into Court for purchase of the property under the Lands Clauses Consolidation Act {y). In an action by a mortgagor to redeem, it is not yet decided whether the mortgagee is entitled to more than six years' arrears of in- terest, but it would seem lie ought to be so entitled on the ground that the statute in this respect only bars the remedy, and therefore does not preclude a defendant from insisting on his right to be paid a subsisting debt in full (z). On the other hand, it is said that the price of redemption ought to be uniform, that therefore the Court ought not to allow a mortgagee more interest in a redemption suit than the statute allows in a fore- closure suit. If a mortgagee realise his security by sale, he has a right of retainer over the proceeds for all arrears of interest, nor will that right be affected by payment of such proceeds into Court to the credit of the mortgagee's estate which is being administered (a). When there is a covenant under seal to pay rent or interest, an action on the covenant will lie to recover twenty years' arrears of such rent or interest; hence, a mortgagee with whom the mortgagor has covenanted to pay interest on the debt is a secured creditor for six of twenty years' arrears of such interest, and an unsecured creditor for the remaining fourteen years' arrears (6). The case, however, is different where the mortgagee claims against the heir of a mortgagor who has covenanted for payment for himself and his heirs ; for there, to avoid circuity of action, the mortgagee will be allowed to tack the specialty to the mortgage debt, and thus he becomes a secured creditor for twenty full years' arrears of interest (c). The rule that prohibits more than six years' arrears of interest being recovered does not extend to an action brought by a person entitled to a subsequent (3^) In re Stead, L. R. 2 Ch. D. 7l7j arrearB of interest are recoverable against 8 & 9 Vict. c. 18. the personal assets of a judgment debtor (z) See posi, p. 382. ilnder 16 & 17 Vict. 0. 113, s. 20; (djEdmundsD.WaughjL.R. lEq.418. Breslin v. Hodgens, Ir. R. 10 Eq. 260. (6) Dav. Prec, 3rd ed., vol. ii., pt. 2, (c) Elvey v. Norwood, 5 De U. & Sm. 572 n. In Ireland more than six years' 541. 138 FUNDED SECURITIES OR SECURITIES ON PROPERTY. mortgage or other incumbrance on land, within one year next after any prior mortgagee or other incumbrancer has been in possession of the same land or in receipt of the profits thereof ; in such action the plaintiff may recover the arrears of interest which shall have become due during the whole time that such prior mortgagee or incumbrancer was in the aforesaid possession or receipt, although such time may have exceeded six years (d). Ajudgment creditor who has the first securityupon the estate,and gets into possession, is a prior incumbrancer within this section (e). Equity follows the law in the matter of limitations (/); in cases of adverse possession where there is no trust, no infancy, no fraud, no suppression, where, in short, there is a mere bond fide adverse possession, it is not according to the course of the Court to carry back the account of rents beyond the filing of the bill (g) — the principle of which rule is, that in order to disentitle the plaintiff to an account of rents before the institution of the suit, there must be neglect in bringing the suit when he could have brought it (h). Subject to the exception mentioned in s. 42, twenty and six years from the time the cause of action accrued are the respective periods within which the four classes of suits above- mentioned must be brought ; those periods, however, may he extended by (1) a written and signed acknowledgment of hahi- lity, (2) payment of principal, interest, or rent, (3) the disability of a party to sue. (1.) A written acknowledgment of liability, signed by a party liable on a covenant or his agent, operates as a renewal of the cause of action for twenty years from such acknowledg- ment (i) ; a written acknowledgment of the mortgagor's title, signed by the mortgagee or party claiming through him, and given to the mortgagor or person claiming through him, or to the agent of either within twenty years from the time (d) S. i2, 3 & 4 W. IV. c. 27 ; Smith (/) Knox v. Gye, L. E. 5 H. L. 656, I'. HiU, L. k 9 Ch.D. 143; Cunningham {g) Hioieti. SalUtt,3 D.M.N. G. 782. V. Foot, L. K. 3 App. Cas. 974. {h) Hickman v. Upsall, L. E. 4 Ch (c) Henry t. Smith. 2 Dru. & War. D. 144. 38 (i) 3 & 4 W. IV. c. 42, ss. 3—5. MORTGAGES OF FREEHOLDS. 1 39 an action to redeem accrued to the mortgagor, gives the latter a right to redeem within twenty years from such acknow- ledgment (k) ; a written acknowledgment of the right to a sum of money charged upon land, signed by the person by whom the same is payable or his agent, and given to the person entitled thereto or his agent, within twenty years from the time, a present right to receive such sum of money accrued to some person capable of giving a discharge or release for or of the same, authorises, an action to be brought for the recovery of such money within twenty years from such acknowledgment (I); a written acknow- ledgment of arrears of rent or interest being due, signed by the person by whom the same was payable or his agent, and given to the person entitled thereto or his agent, authorises an action to be brought for recovery of such arrears within six years from such acknowledgment (m). Section 5, 3 & 4 Will. IV. c. 42, and s. 42, 3 & 4 Will. IV. c. 27, do not require the acknowledg- ment to be given at any specified period, whilst ss. 28, 40, 3 & 4 Will. IV. c. 27, declare that no actions shall be brought after twenty years from the accrual of the cause of action, unless in the meantime the requisite acknowledgment be given. In a case within s. 28, 3 & 4 Will. IV. c. 27, an acknowledgment was held good, though given after twenty years from the accrual of the cause of action (n), but it may be doubted if this decision can be supported (o). (2.) Part payment or part satisfaction on account of any prin- cipal or interest due on covenant under seal (p), or payment of any part of a sum of money chatged upon land, or of any interest thereon (g), enables the covenantee or person to whom a present light to receive the same has accrued, or who is entitled or claiming under any mortgage, to bring an action for breach of the covenant, or to recover principal and interest charged on (i) 3 & 4 W. IV. e: 27, s. 28 ; Tru- (o) Darby & Bosanq., Limit. 364 ■ lock V. Kobey, 12 Sim. 406 ; Lucas v. see s. 34, 3 St i W. IV. c. 27 ■ Daw- Dennison, 13 Sim. 584. kins v. Ld. Penrhyn, L. K 6 Ct D (I) 3 & 4 W. IV. i;. 27, s. 40. 318 ; In re Alison ; Johnson v Moun" (m) Ibid., s. 42. sey, W. N. (1879) 50. {n) Stausfield v. Hobson, 3 De G. M. (p) 3 & 4 'iV. IV. c. 42 s 5 & G. 620. (2) 3 & 4 W. IV. c. 27, «. 40 140 FUNDED SECURITIES OR SECURITIES ON PROPERTY. land, or to recover land so charged (r), within twenty years from such payment. Section 5, 3 & 4 Will. IV. c. 42, and the 7 Will. IV. & 1 Vict. c. 28, do not require the payment to he made at any specified period. Section 40, 3 & 4 Will. IV, c. 27, bars an action after twenty years from accrual of the cause thereof, unless in the meantime the requisite payment be made. (3.) If a person entitled to bring an action on a covenant under seal, or to recover land or rent, be under disability of in- fancy, coverture, or mental incapacity when the cause of action accrues, an action on the covenant may be brought within • twenty years from the time the disability ceases (s) ; an action to recover the land or rent within ten years from the time the disability ceases, or the death of the person labouring under it, whichever event shall first happen (t) ; but an action to recover land or rent must, notwithstanding the continuance of disability, be brought within forty years from the accrual of the cause thereof (u), and no time beyond ten years from the death of a person under disability is allowed by reason of the disability of any other person (x). The result of the statutes of Will. IV. and the Real Property Limitation Act, 1874, may be thus summarised : — a covenantee may bring an action on a covenant under seal within twenty years from accrual of the cause of action (y), or within twenty years from any due acknowledgment of liability (z), or if under disability when the cause of action accrues within twenty years from the time the disability ceases (a) ; a mortgagor may bring an action to redeem within twenty (or twelve) (6) years from accrual of the cause of action, or within twenty (or twelve) years from due acknowledgment of his title given within twenty (or twelve) years from accrual of the cause of action (c), or if under (r) 7 W. IV. & 1 Vict. c. 28. „. Morley, 1 De G. & J. 67 ; Moodiea (s) 3 & 4 W. IV. u. 42, s. 4. Bannister, 4 Drew. 433 ; Howoutt v. («) 3 & 4 W. IV. i;. 27, s. 16. Bonsor, 3 Ex. 491. (") ^bid., o. 17. (o) 3 & 4 W. 1 V. c. 42, s. 4. {X) Ibid., B. 18. (6) On and after 1st January, 1879, (jr) 3 & 4 W. IV. 0. 42, s. 3 ; Paget 37 & 38 Vict. o. 57. V. Foley, 2 Bing. N. C. 679. (c) 3 & 4 W. IV. «. 27, a. 40. (s) 3 & 3 W. IV. c. 42, 8. 5 ; Eoddam MORTGAGES OF FREEHOLDS. 141 disability when the cause of action accrues, within ten (or six) (d) years from the time such disability ceases (e), provided such period does not exceed forty (/) (or thirty) years from accrual of the cause of action ; a mortgagee may bring an action to recover money (g) secured by a mortgage on land within twenty (or twelve) years from accrual of the cause of action, or within twenty (or twelve) years from due acknowledgment of the right to such money given within twenty (or twelve) years from accrual of the cause of action, or within twenty (or twelve) years from due payment of any part of such money or of the' interest thereon, made within twenty (or twelve) years from accrual of the cause of action (h) ; a mortgagee may bring an action to recover any land or rent mortgaged within twenty (or twelve) years from accrual of the cause of action, or within twenty (or twelve) years from due payment of any part of the principal or interest thereon (i), or if under disability when the cause of action accrues, within ten (or six) years from the time such disability ceases (k), provided such period does not exceed forty (or thirty) (I) years from accrual of the cause of action ; a person entitled to any arrears of rent or interest upon money charged upon or payable out of any land or rent, may bring an action to recover such arrears within six years from accrual of the cause of action, or within six years after due acknowledgment of such arrears being due, or, if a subsequent incumbrancer seeking to recover arrears of interest which became due during the possession of a prior incumbrancer, within any time from accrual of the cause of action, provided the action be brought within one year from the time the prior incumbrancer ceased to be in such possession (m). (d) On and after 1st January, 1879, (t) 7 W. IV. & 1 Vict. u. 28. 37 & 38 Vict. c. 57. (A) 3 & 4 W. IV. ^. 27, s. 16. (e) Ibid., s. 16. ' (I) Ibid., s. 17. (/) lUd., ». 17. (m) 3 & 4 W. IV. c. 27, s. 42 ; Smith {g) Ibid., s. 40. v. HiU, L. R. 9 Oh. D. 143 : In re West's {h) 3 & 4 W. IV. c. 27, s. 40. Estate, 4 L. R. Ir. 124. 142 CHAPTER XVIII. MORTGAGES OF LEASEHOLDS FOR YEARS. A MORTGAGE of a leasehold term for years is effected either by demise or by assignment ; by a demise, an estate for j^ears is created; by an assignment, an estate for years is trans- ferred. A demised estate for years must be carved, either directly out of the fi-eehold, as when a term is granted by tenant in fee, in tail, or for life — or directly out of a subsisting leasehold, and indirectly out of the freehold, as when tenant for years underlets for a term less than his own. In the case of an underlease the sub-lessee holds of the original lessee, but in the case of an assignment or conveyance by which a tenant for years passes his whole interest in the term, the assignee holds of the original lessor, to whom he will be liable on the assignors' covenants in the lease which as such run with the land (a). To avoid this liability, it is usual on the part of a mortgagee of leaseholds to insist that the mortgage should be by way of underlease, and as any demise short by a single day of the original term will constitute an underlease, a mort- gage in that mode may be made for an interest all but as durable as the interest of the mortgagor. By the joint effect of the Statute of Frauds (h) and the Act further to amend the law of property (c), all mortgages by way of demise (d), except such as do not exceed three years from the maldng thereof and whereon two-thirds of the full improved value is reserved as rent (e), and all mortgages by way of assignment with perhaps (o) Spencer's Case, 5 Eep. 16 ; Moule (4) 29 Car. II. u. S. V. Garrett, L. E. 7 Ex. 96 ; Cornish ». (c) 8 & 9 Vict, c 106. Stubbs, L. R. 5 C. P. 334, per WiUes, (d) 29 Car. II. o. 3, s. 1. J. (e) Ibid., s. 2. MORTGAGES OF LEASEHOLDS FOR YEARS. 143 a similar exception, are required to be by deed (/). The form and contents of the deed are similar to the form and contents of a mortgage deed of freeholds, except that the words appropriate to the limitation of chattels are used, that the mortgagor covenants that he has good title to demise or assign, ' that, besides the recital of the agreement for a loan, there is a preced- ing recital of the indenture of lease under which the mortgagor holds, and that where the mortgage is by way of underlease, it is provided that in the event of the mortgagee exercising his power of sale, the mortgagor should stand possessed of the residue of the original term in trust for the purchaser. The mortgage deed is prepared and its expenses borne in the manner before described, and in the absence of agreement dis- pensing with production of title deeds the lessor's title as well as tlie subsequent title to the term must be shown (g), even though the lease which is the root of title is more than sixty yeai-s old (A). Where leaseholds are registered under the Land Transfer Act, they may be mortgaged in the manner pre- scribed by that statute, and the rules made in pursuance thereof (i). The principles and statutes that govern the relations of the mortgagor and mortgagee of leaseholds are for the most part the same as those that govern similar relations in the ease of freeholds ; in two particulars, however, viz., 1st, registration; 2nd, limitation of actions, mortgages of freeholds and leaseholds stand on a diflferent footing : — 1st. The Acts requiring registration of memorials of con- veyances of lands do not extend to any leases at rack- rent, or for a term not exceeding twenty-one years, where the actual possession and occupation go with the lease (k). if) 29 Car. IL c. 3, s. 3. Chitty on (A) Frend v. Buckley, L. E. 5. Q. B. Contoaots, 10th ed., 291, 292. 213.1 ig) I. Dart. V. & P., 5th ed., 290. (0 38 & 39 Vict. c. 87 ; 11 W N Under s. 2 (1), 37 & 38 Vict. c. 78, the U. intended grantee or assign on a con- (k) '2 & 3 Ann. c. 4, s. 17 ; 6 Ann. c. tract for sale of » term of years is no 35, s. 29 ; 7 Ann. c. 20, a. 18 ; 8 Geo. longer entitled to call for the title to II. c. 6, s. 34 ; 6 Ann. Ir. c. 2, s. 14. the freehold. 144 FUNDED SECURITIES OK SECURITIES ON PROPERTY. Hence, in the absence of a stipulation depriving the mortgagee of his right to enter and occupy, it seems unnecessary to register a mortgage (either by demise or assignment) of a term not exceeding twenty-one years ; and on the other hand registra- tion would appear indispensable if the mortgagee be debarred of entry and occupation until default made by the mortgagor or other event, and perhaps also if he do not take actual possession. In practice, however, it is usual to register all mortgages of leaseholds, whether or not the mortgagee enter into possession (I). 2nd. The general effect of the Statutes of Limitation in regard to mortgages of land, is to bar after a given period actions which have the following objects : — (1) to recover land mortgaged ; (2) to recover money charged on land ; (3) to recover arrears of interest on money charged on land, or to recover arrears of rent ; (4) to recover damages for breach of covenant under seal (m). It is only in respect to actions for the recovery of the land mortgaged that a difference exists in the provisions of the above Acts between mortgages of freeholds and mortgages of leaseholds ; hence, in treating of the latter we may confine ourselves to an indication of the points in which that difference consists, referring to our previous observations for an account of the rules which effect mortgages of freeholds and leaseholds alike. There are, then, three separate sections in the Statutes of Limitation which specially modify the general clauses relating to the recovery of mortgaged land, and bear directly on leaseholds. By s. 3, 3 & 4 Will. IV. c. 27, the right to bring an action to recover land accrues to a rever- sioner thereof at the time when the estate in reversion shall become an estate in possession. By section 8, in cases of tenancies from year to year or other period without any lease in writing, the right is to accrue at the determina- tion of the first of such years or other periods, or at the last time when any rent shall have been received (which shall last happen). By section 9, in case of a lease in writing with {I) Sug. V. & P., 14th ed., 732. (m) Ante, p. 136. MORTGAGES OF LEASEHOLDS FOR YEARS. 145 twenty shillings rent or upwards, and the rent shall have been wrongfully received by a person claiming to be entitled to such rent or reversion immediately expectant on the determination of such lease, and no payment shall have been made to the party rightfully entitled, the right is to accrue at the time of the first wrongful payment, and not at the determination of the lease (n). From the accrual of the cause of action as so defined, the same periods are allowed for bringing the action as in other cases; that is, the party entitled may sue within twenty (or twelve) (o) years from such accrual, or if under disability at the time of such accrual, within ten (or six) years from the time such disability ceases, provided the action be brought within forty (or thirty) years from its accrual (p). Thus, a tenant of leaseholds who mortgages the same by way of underlease can bring an action to redeem within the specified periods from the expiration of the under- lease, unless indeed a rent of twenty shillings or upwards has been reserved on such underlease, and such rent has been wrongfully received, and no payment made to the mortgagor as described in section 9, in which case the mortgagor in his character of reversioner, can only bring an action to redeem within the specified periods from the first wrongful payment, and not from the expiration, of the underlease. Where the underlease creates a tenancy from year to year, or other period without any lease in writing, the determination of the first of such years, or other periods, or the last receipt of rent (which shall last happen) is to be deemed the expiration of the under- lease. The right of the mortgagor to bring an action as rever- sioner is cumulative on his right to bring an action as mort- gagor ; in other words, mortgagors of freeholds and lease- holds have as such the same time to redeem, but a mort- gagor of leaseholds has in addition a further time for that purpose in his capacity of reversioner. In case a mortgagor {») Williama i>. Pott, L. E. 12 Eq. (p) Gu and after 1st January, 1879; 149. 37 & 38 Vict. 0. 57, (o) Ante, pp. 140, 141. 146 FUNDED SECURITIES OR SECURITIES ON PROPERTY. has as such lost his right of redemption, it may be a question whether he can bring an action to redeem as reversioner until the falling in of the reversion ; thus, if tenant for fifty years mortgages for a term of thirty years, and the mortgagee remain in possession for twenty years, so as to bar action to redeem, brought by the mortgagor as such, it is. not clear whether the mortgagor as reversioner can institute an immediate suit, or must wait tiU the expiration of the term of thirty years. If the mortgagor fail to redeem within the time allowed him, either as mortgagor or as reversioner, the mortgagee obtains an irre- deemable estate in the mortgagor's term. On the determina- tion of such term the original lessor may eject the mortgagee, but if he fail to do so within twenty (or twelve) years from such determination, and no acknowledgment of his title have been meantime given, the mortgagee will, on the expiration of such twenty (or twelve) years, obtain an indefeasible estate as against such lessor (q). The estate so acquired wiU be com- mensurate in quantity of interest with the estate of the lessor, so that, according as the latter was tenant in fee or of a less estate, wiU an estate in fee or for a less interest be acquired by the mortgagee. When a leasehold is mortgaged by assignment of the term, the mortgagor, having no reversion, can only redeem within the time allowed a mortgagor as such ; the lessor is in this case the immediate reversioner ; from him the mortgagee holds as tenant, and on determination of the term an indefea- sible estate as against the lessor may be obtained by the mortgagee in the manner just described. The lessor's power to eject is subject to the restriction contained in s. 9, 3 & 4 Wm. IV. c. 27 (r). (g) Ante, p. 141. 725 ; Adnam v. Earl of Sandwich, L. K. (r) See Governors of Magdalen Hos- 2 Q. B. D. 485. pital V. Knotts, L. E. 8 Ch. D. 679, 147 CHAPTER XIX. MORTGAGES OF COPYHOLDS. A MORTGAGE of a copyhold estate is effected by a conditional surrender of the estate to the use of the mortgagee, the condi- tion being that the surrender shall be void if the money ad- vanced be duly re-paid at a fixed day, but otherwise shall re- main in full force and effect By the surrender nothing passes until due entry upon the Court Rolls (a) ; these acts being completed, the mortgagee generally abstains from taking admit- tance until it becomes necessary or desirable to do so ; in this way the fines and fees are saved, and the mortgagee escapes the incidents of the tenancy, for before admittance a sur- renderee's estate is merely equitable, the surrenderor remain- ing liable to the lord for the services and for forfeiture (6). Except by special custom, the lord cannot compel the mort- gagee to take admittance either before or after breach of the condition (c) ; upon such breach, however, and admittance the mortgagee's estate becomes absolute, and his title relates back to the surrender, so that he acquires priority over all admitted surrenderees subsequent thereto {d). The terms upon which the mortgage is made are contained in a deed, the form of which is similar to a mortgage deed of freeholds, except that in place of the granting clause and the proviso to re-convey on re-payment of the debt, there is a covenant to surrender, or cause the copyholds to be surrendered to the use of the mort- (a) Burgaine v. Spurling, Cro. Oar. (c) Watk. Cop. 1, 148 n. 283 ; Fawcett v. Lowther, 2 Ves. 303 ; (d) Holdfast d. Woolams v. Clapham 4 & 5 Vict. 0. 35 s. 90. 1 T. E. 600 ; I. Fisher Mortga. 3rd ed! (6) Doe d. Shewen o. Wroot, 5 East 22 ; see Wade's Case, 5 Co. 114 b • Co 132 ; Minton v. Kirkwood, L. R. 1 Eq. Litt. 209a, et seq. ' 449 ; I. Fisher Mortgs. 3rd ed. 21. h2 14:3 FUNDED SECURITIRS OR SECURITIES ON PROPERTY. gagee, and a proviso making void the surrender on re-payment of the debt. Where a mortgage is effected on the joint security of copyholds and freeholds, or leaseholds, the mortgage may be comprised in a single deed which should contain the covenant to surrender, and make the covenants for title extend to the copyholds. When a mortgagor fails to surrender pursuant to his covenant, the mortgagee may obtain the estate by a vesting order under the Trustee Act, 1850 (e), and the Trustee Exten- sion Act, 1852 (/). The Land Transfer Act does not extend to copyholds. With a few exceptions, mortgages of copyholds, like mort- gages of leaseholds, are governed by the same principles and statutes as govern mortgages of freeholds: (1) registration; (2) entry of satisfaction ; and (3) limitation of actions, furnish the chief exceptional matters of difference. (1) The Acts requiring registration of memorials of conveyances of lands do not ex- tend to copyholds {g), yet it is considered advisable, though not clearly necessary, to register leases of copyholds where leases of freeholds (A) would be registered, the lease being a Common Law interest. (2) On discharge of the mortgage debt, the mortgagor requires no fresh admittance,' unless the mort- gagee have been admitted, and the day of payment be past, otherwise it is sufficient to enter satisfaction on the Rolls (*). (3) There are no special provisions in the Statutes of Limitations as to copyholds ; hence the general clauses relating to mortgages would seem to put copyholds and freeholds on the same foot- ing, so far as time may bar a mortgagor or mortgagee from bringing an action. Of the actions that may be brought, the only class in dispute is that which embraces actions for re- covery of the land mortgaged ; the other classes of actions are {k) (e) 13 & 14 Viet. .;. 60, ss. 3, 20 ; (h) Sug. V. & P. 14th ed. 732. In re Crowe's Mortgage, L. E. 13 Eq. (i) G-ilb. Ten. 276 ; Simonda ». 26 ; In re Walker's Mortgage Trusts, Lawnds, Cro. Eliz. 239 ; 1 Sori. 194, L K. 3 Ch. D. 209. 4th ed. ; II. Fisher, 1067, 3rd ed. (/) 15 & 16 Vict. 0. 55, s. 2 ; /« re (h) Ante, p. 136 ; see Hodgson u Cuming, L. R. 5 Ch. 72. Hooper, 6 Jur. N. S. 911 ; Barron v. (r/)SeetheSeotions quoted SMj3ra,p.l43. Martin, 19 Ves. 327. MORTGAGES OF COPYHOLDS. 149 subject to the same rules, whetlier the property in question be freehold or copyhold. Now with regard to actions for recovery of copyhold land, there are two periods to which the accrual of the cause of action may be referred — either the time of the surrender, or the time of the admittance, and according as the action is deemed to accrue at the first or at the second of these periods, mortgaged copyholds will or will not respectively be recoverable by action within the same time as mortgaged free- holds are recoverable. In a recent case, it was held that the heir of a tenant of copyholds, which were seized by the lord quousque, not having claimed to be admitted till over twenty years after the seizure, was barred of his right to admittance bj" the Statutes of Limitation {I). There, however, the plaintiff, as devisee, was in the situation of a surrenderee on an abso- lute surrender, whereas a mortgagee is only a surrenderee on a conditional surrender ; and it may therefore be consistent with the above authority to refer to the admittance as the true period at which causes of action to recover mortgaged copy- holds accrue. From the time of such accrual, actions must be commenced within the same periods as are allowed from the cause of action in the case of freeholds {w,). (l) Walters v. Webb, 1,. E. 5 Ch. 531. (m) Ante, pp. 140, 141. 150 CHAPTEE XX. MOETGAGES OF SHIPS. Mortgages of ships, and shares therein, are effected in the mode prescribed by the Merchant Shipping Act, 1854 (a). By that statute all British sea-going vessels are required to be registered (b), and the property in every registered ship is divided into sixty-four equal shares, of any one or more of which any person or persons (not exceeding five for a single share), may be registered as owners, provided the total number of such owners does not exceed thirty-two (c). There are two ways in which a registered ship, or any shares therein, may be mortgaged ; (1) by a direct mortgage and registration thereof; (2) by mortgage under a mortgage certificate. (1 ) The mortgage instrument must be in the form supplied by the Act ; it is executed by the mortgagor subscribing his name and aflixing his seal in presence of a witness who then sub- scribes (d). On its execution, the instrument should be taken to a registrar for registration ; it will be registered in the order of its production to that officer, and thereupon indorsed by him with a memorandum of such registration (e). For the assign- ment of such mortgages, a special form of transfer is provided, and, on the production of such form duly executed, the regis- trar will enter the name of the transferee or mortgagee on the register, and indorse the instrument with a memorandum of {a) 17 & 18 Viot. 0. 104. As to don v. Lenanton, L. E. 3 C. P. D. 213. Foreign Ships, see Hooper v. Gunner, (c) fbid,, s. 37. L. K. 2 Ch. 282. (d) Ibid., a. 66. (6) Ibid., s. 18 ; Union Bank of Lon- (e) Ibid., s. 67. Form I. MOETGAGES OF SHIPS. 151 record (/). In case of the transmission of a mortgagee's in- terest by death, bankruptcy or marriage, the person to whom such interest is transmitted is to make a formal declaration authenticating the fact, and, on such declaration and the pro- duction of satisfactory evidence, the registrar will enter, as mortgagee on the register, the person so proved to be en- titled (g). When the mortgage is discharged, an entry to that effect may be made on the register (h). As to the effect of a mortgage of a ship or share (i) : " The statutory instrument when duly executed by the owner passes the property to the mortgagee, in the mean time, as against the mortgagor, and, when registered, as against third parties. The registered mortgagee is thereupon protected against the trustee in bankruptcy, or the execution creditor of the mortgagor ; he may entitle himself to the accruing freight by taking possession of the ship before the termination of the voyage (k), but until he does that, or something equivalent to it, he has no right thereto, and when he has done so, though not liable for debts incurred before that time for the purpose of the ship, he is so far bound by her engagements that he may not do aught inconsistent with their being fulfilled " (I). Between mortgagor and mortgagee, then, registration is not compulsory, nor does it as between them affect the validity or effect of the mortgage, the only consequence of non-registration being to postpone a prior mortgagee or trans- feree to a subsequent mortgagee or transferee, whose mortgage or transfer is registered. So, even an unregistered mortgage passes to the mortgagee the ownership of the ship as against a subse- quent equitable assignment of the freight to a third party — at all events in the absence of fraud, or such gross and wilful negligence as is equivalent to fraud (m) ; but the first registered mortgagee of a ship by taking possession before the freight is (/) 17 & 18 Vict. c. 104, B. 73. Form (£) Brown v. Tanner, L. E. 5 Ch. K. 597 ; Kusden v. Pope, L. K. 3 Ex. 269. {g) Ibid., bB. 74, 75. Form L. (l) Maclachlan Merchant Shipping, (A) lUd., s. 68. 2nd ed. pp. 40, 41. (j) Beynon v. Godden, L. R. 3 Ex. D. {m) Keith v. Burrows, L. K. 1 C: P. D. 264. 722 ; 2 C. P. D. 160 ; 2 App. Cas. 636. 152 FUNDED SECURITIES OR SECURITIES ON PROPERTY. completely earned, obtains the legal right to receive the freight, aad to retain thereout, not only what is due on the first mort- gacne, but also the amount of any subsequent charge which«he may have acquired on the freight in priority to any equitable charge of which he had no notice (n) ; and it matters not that a subsequent incumbrancer was first to give notice to the charterers of his charge (o). Once a discharge is entered on the register, the mortgage cannot be revived by entry of a memorandum that the receipt had been given by mistake ; the Admiralty division, however, may on a suit in rem, declare the purchaser from a mortgagee whose title had by mistake been cancelled on the register entitled to possession of the ship {p). A mortgagee cannot recover back freight which he has allowed the mortgagor to receive, but may at any time intercept freight by giving notice to the mortgagor, consignee, or charterer that he intends to exercise his right of property, and require the freight to be paid to him (g). The master of a ship has a maritime lien on the freight for his wages and disbursements in priority to the claims of mortgagees (r), and such lien is not affected by his being part owner of the ship ; but mortgagees are entitled to priority over material men, who at the time of supplying the materials were not in such actual possession of the ship as to give them a possessory lien over her (s). No- thing is freight unless there is involved in it a contract to carry, for freight is a sum payable in respect of a contract to carry, and, if there is no contract to carry, then, although the sum to be paid may be called freight, it is not in point of law freight within the rule that the mortgagee is entitled to the accruing freight (t). So long as he does not interfere nor claim possession, a mortgagee may fairly be taken to have allowed the mortgagor to enter into all engagements for the (n) Liverpool Marine Credit Co. v. 32. Wilson, L. K. 7 Ch. 507. (r) The Feronia, L. E. 2 Ad. & Eccl. (o) Bell V. Blyth, L. K 4 Ch. 136 ; 65. 6 Eq. 201. • (s) The Scio, L. K. 1 Ad. & Eccl. 353. ip) The Rose, L. R. 4 Ad. & Bool. 6. (t) Keith v. Burrows, -ubi supra, iq) Wilson „. Wilson, L. E. 14 Bq. MORTGAGES OF SHIPS. 153 ship usually entered into by the person who has the apparent control and ownership (u) ; and a mortgagee in possession is not liable for necessaries, unless the master in ordering them acted as his agent {x), or unless the creditor obtain a maritime lien under 24 Vict. c. 10, s. 5 (y). Moreover, subject to the provisions relating to the rights of registered owners or incumbrancers, equities may be enforced against mortgagees in respect of their interests in ships or shares, in the same way as equities in respect of any other personal property (z). Thus, a transfer registered as absolute may be shown to be only a security, and in an action in the Admiralty Division, under 24 & 25 Vict. c. 10, s. 11, by the registered transferee of a mortgage of an arrested ship, the Court will enforce equities between the owner and mortgagee, and consider all transactions between the parties, and not merely the registered documents (a). Registered mortgagees have priority according to the order of date in which their respective mortgages are recorded in the register books (6). A power of sale is conferred upon them irrespective of any agreement to that effect, but no subsequent mortgagee can sell without the concurrence of every prior mortgagee, except under the order of a court having cogniz- ance of such matters (c). A mortgagee is not deemed an owner, except so far as to make the ship or share mortgaged a security for the mortgage debt (d), and registered mortgages are not affected by any act of bankruptcy committed by the mortgagor after the date such mortgages are recorded (e). (2) A mortgage certificate is a power authorising a given per- son or persons, to effect a mortgage or mortgages on a registered ship or any share therein for an amount and within a time («) JohnsoB V. Koyal Mail Steam C. P. D. 243. Packet Co., L. R. 3 C, P. 38. (a) The Cathcart, L. R. 1 Ad. ft (x) The Ttoubadour, L. R. 1 Ad. & Eccl. 314. Eocl. 302. (6) 17 & 18 Vict. c. 104, s. 69. (y) The Two Ellens, L. R. 4 P. C. (c) Jbid., a. 71. 161. {d) Ibid., ». 70. (2) 25 & 26 Vict. c. 63, s. 3 ; Union (e) /bid., s. 72. Bank of London v. Lenanton, L. R. 3 154 FUNDED SECURITIES OR SECURITIES ON PROPERTY. certain, either generally or at some specified place. Such cer- tificates are granted by the registrar on application by the owners (1°) for any place out of the United Kingdom, except a British Possession being the port of registry (/) ; (2°) for places within the United Kingdom, if the port of registry be abroad (c/). Before the grant of a certificate, the following particulars have to be stated to the registrar and entered on the register: — (I.) The names of the persons by whom the power mentioned in the certificate is to be exercised, and the maximum (if it be intended to fix one) of the amount of charge to be created ; (II.) the specific place where the power is to be exercised, or if no place be specified, then that it may be exercised any- where ; (III.) the limit of time within which the power may be exercised (h). Forms of certificates are provided, which, in addition to the particulars entered on the register, contain any registered mortgages or certificates of mortgage affecting the ships or shares, in respect of which such certificates are given (i), and certain directions which it is requisite to follow (k). Under these latter, a record of every mortgage made in pursuance of the certificate must be indorsed thereon by a registrar or British Consular oflicer, and the mortgages so registered on the certificate have . priority over all mortgages created subsequently to the entry of the certificate in the register book, whilst several mortgages created under a certi- ficate have priority i/nter sese, according to the respective dates at which a record of each instrument is entered on the certificate (l). The discharge of a mortgage created under a certificate may be indorsed thereon by a registrar or British Consular officer. All undischarged mortgages are to be entered on the register. (/) 17 & 18 Viot. c. 104, s. 76. (i) Ibid., s. 79, rorm M. {g) Hid., B. 77. (k) Ibid., s. 80. {k) Ibid., B. 78. (0 Ibid., s. 80. 155 CHAPTER XXI. MORTGAGES OF STOCK AND SHARES IN COMPANIES. Bank stock, government securities, and shares in companies are mortgaged by being transferred on the books of the Bank of England, or on the register of shareholders, i-espectively, from the name of the mortgagor to that of the mortgagee or of a trustee, and by delivery to the mortgagee or trustee of a warrant or certificate (a) showing his title to the stock or shares so transferred. In the case of bank stock the mode of transfer is as foUows : — ^A transfer ticket, containing the name of the transferor or mortgagor, and of the transferee or mort- gagee, is taken to the Bank and there copied into a book, which, and a receipt prepared from the ticket, the transferor signs ; these signatures are thereupon countersigned by the bank clerk, and the receipt is handed to the transferee, who should also sign the book, and so accept the transfer. Where the transferor is not a member of the Stock Exchange, and employs a broker, the latter should sign the transfer-ticket, to prove the identity of his principal. No one but the proprietor or his lawful attor- ney so constituted under a power of attorney can transfer stock or receive dividends thereon. Regularly, transfers should be made on the public transfer days set apart for that purpose, but transfers may also be made at other times on payment of a smaU fee (6). An independent agreement specifies the terms of mortgage. (a) As to nature of certificate in Ely. and selling stock and shares on the Cos., see Shropshire Union Elys. & Stock Exchange, see Griseell v. Bris- CanalCo.uTheQueen,L.E..7H.Ij.496. towe, L. E. 4 C. V. 36 ; Coles u. Bris- (6) As to the ordinary mode of buying towe, L. E. 4 Ch. 3 ; post, ohaip. xxxv. 156 FUNDED SECURITIES OR SECURITIES ON PROPERTY. Shares in companies formed under the Act of 1862 are transferable in the manner provided by the regulations of the company (c). Subject thereto (d) the instrument of transfer (which need not be under seal, though it generally is so) (e) should be executed both by the transferor and transferee, and there- upon the certificate of the shares, which furnishes primdfMie evidence of title to those specified therein (/), should be handed over by the former to the latter, and the transfers be registered in the company's books ; until which registration the legal ownership does not pass to the transferee (g). Under the Companies Act, 1867, companies whose capital consists of stock or fully paid up shares may issue share warrants trans- ferable by delivery, or by indorsement and delivery if not drawn payable to bearer. By such transfer the legal owner- ship in the shares represented by the warrants passes without registration (h). The eflfect of registration is to render the person whose name is registered, and who has agreed to become such, a member of the company, with all the rights and liabilities attaching to that character (i). And again, so long as registration is omitted or defective, the person whose name was last eflfectually registered remains legal owner. Thus, on an equitable mortgage of shares by deposit of the certificates, the shares will remain- within the order and dis- position of the mortgagor, so long as his name continues on the register (k) ; and, on the other hand, a registered mortgagee who, on payment of his debt, transfers the mortgaged sha,res to a person incapable of holding the same, will continue legal owner, although such person's name is substituted on the register (l) ; but a mortgagee whose debt has been paid off, and whose name has never been on the register cannot be {c) S. 22, 25 & 26 Vict. c. 89. (i) 25 & 26 Vict. c. 89, bb. 23, 38; (d) Ibid., ss. 14, 15. Weikersheim's Case, L. E. 8 Ch. 831. (6) Hid., Sch. 1, Tab. A. (9). {k) Royal Bank of India's Case, L. (/) Ibid., s. 31. E. 7 Eq. 91, 4 Ch. 252. {g) lUd., Tab. (8). (i!) Addison's Case, L. E. 5 Ch. 294. (A) 30 & 31 Vict. c. 131, Bs. 27—36. MORTGAGES OF STOCK AND SHARES IN COMPANIES. 157 made a registered holder at the mere caprice of the company or its liquidator (m). The mortgagee is bound to re-transfer the same identical stock or shares mortgaged on due payment of the mortgage debt, and must account for any bonus, profit, or interest which accrues during the time the mortgage subsists (n); but the mortgagor may deprive himself of any remedy by deaUng with other stock or shares which may have been transferred in sub- stitution (o). On the other hand, the mortgagor must bear any loss which arises in the interval between the cessation of the mortgage and re-conveyance. When shares are mortgaged by absolute transfer and regis- tration, the mortgagee is liable for any calls that may be made on such shares, but if the mortgagor elect to redeem, he is bound to indemnify the mortgagee for any liabilities the latter may have incurred {p). To escape the liability of becoming a registered holder, a mortgagee may take a mortgage of shares in the name of a trustee. In such case it has been held that the mortgagee is to be regarded as a creditor, not as a member of the company ; but it may be questioned if this expedient would stand in all cases. In the case of stocks and shares, as with other personal property, a sale, on due notice to the mortgagor, is substituted for a foreclosure (g), and where stock transferred as a security for a floating balance, and under an agreement to continue it, was transferred and re-transferred by the creditor by way of loan, it was held that such transfer by the creditor amounted to a sale (r). Under a general power of attorney to sell, assign, and transfer shares, and to receive and give discharges for the (m) SicheU's Case, L. R. 3 Ch. 119. Eastern Rly. Co.'s Claim, L. R. 14 Eq (n) Langton v. Waite, L. R. 6 Eq. 10. 165. [r) Tucker v. Wilson, 1 P. Wms. 261 • (o) Langton v. Waite, L. R. 4 Ch. Lookwood v. Ewer, 2 Atk. 303 ■ Bry^ **'?■ > -nr. r,.„ . „ *"* "• ^^^°'^' 3 Nev. 313 ; Carter v. (p) Phene v. Gillan, 5 Hare 1. Wake, L. R. 4 Ch. D. 605. (g) City Terminus Hotel Co., South 158 FUNDED SECUBITIES OR SECURITIES ON PROPERTY. purchase moneys, the party empowered cannot mortgage or pledge the shares (s). The transfer of stock or shares by a trustee may be sum- marily restrained by writ of distringas (i), or restraining order (u), to be obtained by any party claiming to be beneficially inte- rested in such stock or shares, on due affidavit (x). The foregoing is an account of mortgages of stock and shares which are them- selves made the subject of security ; sometimes, however, they are made the subject of loan, the borrower entering into a bond to replace the stock or shares on a future day, and meantime to pay interest at a rate varying with the dividends. In an action for breach of such bond, damages are assessed at the .price of the stock or shares on the day of trial or the day previous (y), and a lender is only entitled to have the stock or shares replaced or their price at that time, not to their market value at the time the covenant should have been fulfilled, unless, indeed, an ex- press election is given (z). (s) JEx pwrte Dennison, SVes. 552. ed. 1537. \t) De Bouohout d. Goldsmid, 5 Ves. (y) Harrison v. Harrison, 1 C. & P. 211. 412 ; Owen v. Routh, 14 C. B. 327. (m) 5 Vict. c. 5, ». 5, Sch. 1 ; 38 & (s) Blyth v. Carpenter, L. R, 2 Eq. 39 Vict. u. 77, 0. xlvi. l. 2 ; Consol. 501 ; Chippendale v. Thurston, 4 C. & O. xxvii. r. 72-4. P. 98. (x) 5 Vict. i;. 5, B. 4, 2 Dan. Ch. Pr. 159 CHAPTER XXIT. BILLS OF SALE. Mortgages of movables or of personalty comprise: — 1. Mortgages of goods and chattels of ti corporeal nature other than registered ships. 2. Mortgages of registered ships and shares therein. 3. Mortgages of stock and shares in companies. 4. Mortgages of other incorporeal personal pro- perty (a). Of these four classes of mortgages, the first three call for special treatment ; the last will be dealt with under the general head of assignments ; to proceed, then, with mortgages belonging to the first class: — The instrument by which mort- gages of goods and chattels personal of a corporeal nature are effected, is called a bUl of sale, which, in its most usual accep- tation, may be described as a regular assignment either by deed or by writing not under seal, of furniture, machinery, stock-in-trade, agricultural produce or other chattels personal, capable of complete transfer by delivery. For the mortgage of a chattel personal nothing beyond the mutual agreement of the contracting parties is absolutely indispensable (6) ; no registration, however, of the mortgage can take place under the Bills of Sale Acts (c), unless a written instrument be employed, and most bills of sale are and ought to be in writing under seal. In form a mortgage deed of goods closely resembles a mortgage deed of a leasehold house (d) ; but the former con- la) See ante, p. 109, for definition and J. C. P. 44 ; Shep. Touch. 120. general classification of mortgages, and (c) 17 & 18 Vict. c. 36 ; 29 & 30 Vict, general principles thereof. c. 96 ; 41 & 42 Vict. u. 31. See pott, (6) Litt. s. 365 ; Flory v. Denny, 21 p. 197, et seq. L. J. Ex. 223 ; Keeves v. Capper, 8 L. {d) Ante, p. 143. 1 60 FUNDED SECURITIES OR SECUEITIES ON PROPERTY. tains some additional provisions, as covenant by the mortgagor not to remove the chattels mortgaged from the premises wherein he is allowed their use and possession, power to the mortgagee to enter and take possession on default of payment according to the stipulated condition, and that he may at all reasonable times enter and view the chattels mortgaged. Moreover, when the articles comprised in a bill of sale are numerous or of a varied character, it is usual to describe them particularly in an accompanying inventory or schedule. The office of such in- ventory is to identify the property disposed of; it does not^er se limit the generality of the words in the body of the deed (e), nor can it pass things not therein contained (/) : thus, an " assignment of looms on the said premises, and other eflFects and things thereto belonging, more pax'ticularly set forth in the schedule," passes articles used with the looms and on the premises, although the looms only were mentioned in the schedule, whilst an assignment of steam-engines and other chattels " more particularly enumerated in an inventory of even date, to be read and construed as forming part of these presents," but omitting the stock-in-trade, does not pass the stock-in- trade, notwithstanding the same was mentioned in the sche- dule (g). A. bill of sale transferring " all the goods, fixtures, &c., in and about the messuage in, &c. ; whereof the chief articles are enumerated in a schedule. hereunto annexed," is admissible in evidence without the schedule Qi) : so, in an action on a covenant in a bill of sale the schedule need not be produced (i). The schedule, however, may be so incorporated with the deed as to be an essential condition for the transfer of the property assigned ; thus, a bill of sale assigning all the household goods of every kind in the house, &c., more particularly mentioned in an inventory of even date herewith, passes only such goods as are mentioned in the inventory (k) ; so, where the descrip- (e) Coot V. Sagar, 27 L. J. Ex. 378. (») Daims v. Heath, 16 L. J. C. P. (/) Sx parte Jardine; In re 117. McManns, L. R 10 Ch. 322. (t) Wood v. Eowcliffe, 20 L. J. Ex. (g) Ibid. 285. (h) Dyer v. Green, 16 L. J. Ex. 239. BILLS OP SALE. 161 tion was " All the articles as per schedule annexed" (I). There are two principal rules for ascertaining the joint operation of a deed and schedule ; the first is — Falsa demonstratio non nocet cum de corpore constat, which means, that, if there be an adequate and sufficient description with convenient certainty of what was meant to pass, a subsequent erroneous addition will not vitiate ; the character of cases within the rule is that the description so far as it is false applies to no subject at all, and so far as it is^true, applies to one only (m) ; the second rule is — N'on accipi debent verba in demonstrationem falsam quw competii/nt in limitationem, veram, which means, that, if it stand doubtful on the words whether they import a false reference or demonstration, or whether they be words of restraint that limit the generality of the former words, the law will never import error or falsehood (n). Under a bill of sale, either actually existing' and acquired property or future and after acquired property may be assigned ; at Common Law, however, none but actually acquired property in chattels personal could be transferred, though a power or hcense to seize future property might be validly conferred, so as to vest the subject when the power or license was duly exercised. The law is thus laid down, in one of Lord Bacon's maxims : Licet dispositio de interesse futuro sit inutilis ; tamen fieri potest declaratio prceoedens quae sortiatur effectum, inter- veniente novo actu. The declaratio here spoken of need not necessarily be expressed, but may be implied by the assignment itself (o); by the novus actus is understood the taking of possession or the performance of some similar act of dominion. After acquired property may be freely disposed of by equitable assignment : thus, the profits of an intended voyage, goods to be purchased with the proceeds of goods mortgaged, a ship and [t) Weeks v. MaiUardet, 14 Bast 568. Congreve v. Evetta, 10 Ex. 298 ; Mer- (m) Travers v. Blundell, L. K. 6 Ch. chant Banking Co. ■;;. Spotten, Ir. E. 11 D. 436 ; Homer v. Homer, L. B. 8 Ch. Eq. 586 ; Robinson v. Maodonnell, 5 M. D. 758. & S. 228 ; Buoknal v. Eoistou, 1 Pre (m) MorreU».Fisher,19L. J. Ex.273. Ch. 285 ; Curtis v. Auber, 1 I. & W. (o) Hope V. Hayley, 5 EL & Bl. 830 ; 526 ; Douglas v. Kussell, 4 Sim. 524, Br. M 162 FUNDED SECUEITIES OE SECURITIES ON PBOPERTY. its present and future earnings, freight earned and to be earned, the interest of an expectant devisee or legatee (p), materials to be brought on premises for a specific .purpose (g), new machinery to be substituted in place of worn out machinery (r), and, in general, all after acquired property whatever and every iaterest therein, provided it be of a definite and ascertained character, and such that a contract relating thereto would be specifically enforced, may be assigned or charged in equity (s). Elsewhere we state the nature and requisites of a valid equitable assign- ment (t) ; here it is sufficient to point out the difference between such an assignment and a transfer of, or power to seize, property at Common Law ; for, by the former, an equitable title only is conferred, but such title may be given to future property the moment it comes into existence (u) ; by the latter, a legal title is conferred, but such title cannot be given to future property without some further act when the property comes into existence. A present contract that a mortgagee shall have a right and an interest attaching immediately by force of the contract upon all that property which in futuro may be brought on the premises is clearly different from a contract that the mortgagee shall have power of entering upon the premises for the purpose of seizing and taking possession of that future property ; thus, an assignment of existing chattels empowering the mortgagee to put a manager in possession and giving the mortgagee a license to enter and seize after acquired chattels, does not amount to an equitable assignment, and therefore the mortgagee has no title to such after acquired chattels, until entry and seizure (x). A conveyance of present and future property does not pass the latter until seizure, the (j>) BeckIey».Newland,2P. Wms.191. (t) Post, p. 303, et seq. (g) Langton v. Horton, 11 L. J. Ch. («) All divisions of the Higli Court 299. are now bound to give effect to valid {r) Hokoyd v. Marshall, 10 H. L. C. equitable assignments, post, p. 317—319. 191. (as) Eeeve v. Whitmore, Martin v, (s) Abbott V. Stratton, 3 J. & L. Whitmore, 4 De G. J. & S. 1 ; 32 L. 603 ; Metcalfe v. The Archbishop of J. Ch. 497 ; Beldiug v. Bead, 34 L. J. York; WUcooks i). Wiloooks, 2 Vem. Ex. 212; Ex pa/rte James ; /» re Bam- 855. ford, W. N. (1879) 63. BILLS OP SALE. 163 bankruptcy of the grantor intervening will consequently defeat the grant as to all future property not actually seized by the grantee before the act of bankruptcy. BiUs of sale may be divided into — I. Absolute bills of sale. II. Conditional bills of sale. By an absolute bill of sale, the property granted passes im- mediately to the grantee — so that he from that moment becomes the real and true owner ; thus, an assignment by A. of his fui-niture to B. to secure an advance of £50, vests in B. the property in the furniture, and he instantly becomes the true owner thereof; by a conditional biU of sale the property granted does not pass immediately to the grantee, but its transfer is limited on some future or uncertain event, on the happening of which the property will pass to the grantee, so that he will then become the real and true owner ; thus, an assignment by A. of his furniture to B., in case A. shall fail to pay B. £50 on a given day, and in the meantime and until default in payment, that the furniture shall continue A.'s, does not vest the property in B. unless and until default in payment by A., from which time B. becomes the real and true owner. It is of the last importance that the distinction between an abso- lute and a conditional bill of sale should be carefully borne in mind, for, not only as between themselves, but stiU more as regards the world at large, do the mutual rights of the parties to the instrument differ essentially in each case. As a rule the grantee of even an absolute bill of sale refrains from taking immediate possession, although there be no stipulation to that effect ; but it is usual to insert an express provision that it shall be lawful for the grantor to continue in possession until default on demand, or otherwise, in payment of the money secured, and that upon such default it shall be lawful for the grantee to enter and seize, or seize and sell the goods in question. Unless the power of entry be expressly reserved, the grantee is not entitled to enter on the grantor's premises to take possession, M 2 164 FUNDED SECUaiTlES OE SECURITIES ON PBOPERTY. and if he does so in the absence of such power of entry, he be- comes a trespasser (jj). An express power to take possession and sell on default of payment, on demand, must be reasonably exercised ; thus, it would be unreasonable for a creditor to re- fuse to take a cheque or allow his debtor time to cash it. Where a creditor is entitled by his biU of sale to seize and seU immediately upon default of payment, on demand, that cannot and does not mean that he is to seize and sell instanta- neously on demand. For instance, a man worth £1000, if a demand is made on him to pay £200, requires some time even to go up-stairs and get that sum out of his desk or drawer {z); so, a proviso " instantly on demand and without delay, on any pretence whatsoever to pay the sum due, such demand to be made personally on the debtor, or by giving or leaving verbal or written notice to or for him at his place of business, &c,, so nevertheless that a demand be in fact made" — means that notice in the absence of the debtor must give him an oppor- tunity of compljdng with it within a reasonable time {(£). Some- times a bill of sale provides that the debt secured shall be paid off by periodical instalments, and that on default in payment of any of the instalments, it shall be lawful for the creditor to take possession. Under a biU of sale so worded, the ^omission duly to pay an instalment may be waived by parol, but it would be otherwise if the deed simply declared that it should be lawful for the grantee to take possession, in case the grantor failed to pay an instalment, without adding, on default of the grantee (b). A power of sale is almost uniformlj' inserted in bills of sale ; hence, the grantee has rarely to resort to judicial proceedings for the realisation of his security. The observations hitherto made, deal with the nature and (y) WiUiams v. Morris, 8 M. & W. 4 Ex.13 ; Brightleyi). Norton, 32 L. J. 488 ; Brierly v. KendaU, 21 L. J. Q. B. Q. B. 39 ; Toms v. Wilson, 32 L. J. 21. 382. (s) Wharlton v. Kirkwood, 22 W. R. (i) Albert v. The Grosvenor Invest- ment Co., Limited, L. R. 3 Q. B. 123. (a) Massey v. Sladen, et al. L. R. BILLS OF SALE. 165 validity of a bill of sale as between the parties thereto. We have next to consider under what further conditions a bill of sale will avail against third persons. In prosecuting this inquiry we must constantly have regard to the distinction between an absolute and a conditional bill of sale, and also, to the further circumstance whether in point of fact the grantor or the grantee is in possession of the chattels granted. Speaking generally, there are three classes of persons who may impeach or defeat a bill of sale — 1st, the grantor's creditors ; 2nd, his kndlord, or other person having a right of distress against him ; 3rd, his trustee in bankruptcy ; to be an unobjectionable security, then, a bill of sale must stand good against all and each of the above classes. Section I. Validity of Bills of Sale as against the Grantor's Creditors. By the 13 Eliz. c. 5, and the 29 Eliz. c. 5, all gifts and grants (except those made hond fide for valuable consideration) of lands or goods made with intent to defeat, delay, or hinder the donor or grantor's creditors froai obtaining payment of their just debts, are rendered fraudulent and void as against such creditors. No gift or grant accordingly by bill of sale can be upheld against the donor or grantor's creditors unless it fulfil the condition imposed by the above provisions; in other words, that a bill of sale may certainly avail against the grantor's creditors, it is necessary that it should be made hond fide and for valuable consideration. Bond fides depend primarily on the motives of the parties to the transaction (c) ; in judging of these we must be guided by the presence or absence of certain circumstances which are regarded as badges of fraud. The (c) Nunn v. Willsmore, 8 T. R. 521. 16(; FUNDED SECURITIES OR SECURITIES ON PROPERTY. leading authority on this subject is Twyne's Case (d), where a debtor having made a general assignment of all his goods and chattels to one of his creditors, who allowed him to remain in possession and act as if owner, the gift was held fraudulent for the following reasons : — (1) because it was general without ex- ception even of wearing apparel ; (2) because donor remained in possession and acted as owner ; (3) because the gift was secret ; (4) because it was made pending an action brought by another creditor ; (5) because there was a trust between the parties, which is the cover of fraud ; (6) because the deed of gift contained unusual averments, which always occasion sus- picion. Of these circumstances, the strongest as evidence of fraud are the second and third above enumerated, the whole question of fraud, or no fraud, however, being for the jury to determine (d). The continued possession of the grantor does not render a grant fraudulent where there are countervailing facts, as, e. g., where, on a public sale by the sheriff, a third person takes a bill of sale and allows the debtor to remain in possession (e), or where without such sale a third person re- mains in joint possession with the debtor, who acts as his ten- ant (/), or where the continued possession of the mortgagor is in accordance with the provisions of the mortgage deed (g). This last case embraces conditional bills of sale, where a continued possession of the grantor until performance of the condition, e. g., until default made on payment of a given sum of money is not per se fraudulent, but may be rendered so by other circumstances, as by a grossly inadequate consideration (h), by allowing executions to be levied by the grantor's creditors against the goods in question (i), or by other conduct on the part of the grantee inconsistent with his rights of ownership. Speaking generally, the grantee of an absolute bill of sale will (d) 3 Rep. 806 ; Martindale v. Booth, {g) Edwards v. flarben, 2 T. E. 587 ; 3 B. & A. 488. Cadogan v. Kennett, Cowp. 432. (e) Kidd v. Eawliuson, 2 P. & P. 59. (A) Dewey v. Bayntnn, 6 El. 257. (/) Jezaph V. Ingram, 8 Taunt. (J) Lady Arandell i). Phipps, 10 Ves. 838. :51. BILLS OF SALE. 167 not be safe unless his possession follow and accompany the deed, and be exclusive of that of the grantor (k) ; but the want of possession can be no index of fraud (I), if, as in the case of goods at sea, it be impossible for the grantee immediately to obtain it (wi-). In Twyne's Case there were several concurring facts, each of which was considered an individual indication of the fraudulent nature of the gift ; at the same time it must not be supposed that the existence or non-existence of any or one or more of these facts will necessarily determiue whether or no a gift be fraudulent ; for, on the one hand, there are many other evidences of fraud, e. g., the reservation of a power of revocation (n) ; that the grantee permits third persons to treat the property as the grantor's (o) ; that the settlor keeps the deed in his own custody (p)'; that there is no schedule to the deed (q) ; that the deed does not represent the real contract between the parties (r) ; and, on the other hand, no single circumstance as a rule is conclusive of fraud ; thus, a convey- ance of a debtor's whole property to one of his creditors in consideration of a previous debt is not per se fraudulent within 13 Eliz. (s), and even a number of circumstances primd facie pointing to fraud, may be explained away (t). Indeed, it is impossible to pronounce almost any gift or grant fraudulent until the chief incidents connected therewith are ascertained and duly considered ; fraud is an inference founded not on one or two details, but on the general complexion of any given trans- action. We must carefully bear this fact in mind whilst dealing with the consideration upon which a gift or grant of chattels is made, as here again there is no absolute criterion for the detection of fraud. A voluntary settlement is not necessarily fraudulent as against creditors ; whether so or not {Jc) Edwards v. Harben, uhi supra. {q) Cadogan v. Kennett, Cowp. 432. [1) Wordall v. Smith, 1 Camp. 333. (r) Graham v. Furber, 23 L. J. C. P. (m) Atkinson v. Maling, 2 T. R. 472. 51. (n) Peacock v. Monk, 1 Ves. 132. {s) Alton v. Hamin, L. E. 4 Ch. 622. (o) Lady Arundell v. Phipps, 10 Ves. («) Gale v. Williamson, 8 M. & W. 151. 406 ; Latimer v. Batson, 4 B. & C. 652 ; ip) Doe d. Grimsby v. Ball, 11 M. & 7« re Gass, I. R. 2 Eq. 284. W. 533. 168 FUNDED SECURITIES OR SECURITIES ON PROPERTY. must be determined by the surrounding circumstances. If, at the time of the execution of such a settlement, the settlor is indebted, and in the result any prior creditor is delayed in payment of his debt, then, however solvent the settlor may have been at the time, and however free from any fraudulent intention the settlement may have been, it maybe set aside even at the suit of a subsequent creditor (u). So, if a person on the eve of engaging in trade executes a voluntary settle- ment, the burden rests upon him of showing that he was in a position to make it, and where such settlement takes the bulk of the settlor's property out of the reach of his creditors, it may be set aside by subsequent creditors {x). However, a deed conveying the whole of a debtor's property for the benefit of some of his creditors, with proviso that he should remain iij possession for six months, unless execution issued against him, is valid if hond fide,, and if the debtor retain no benefit for himself {y). A voluntary assignment to defeat creditors is pri/md facie void (z) ; so, if the consideration be entirely inade- quate (a), though the Court will not in general inquire whether the consideration be equivalent (&), and a conveyance where no fraud is shown, and a consideration is in fact given, will stand good (c). Valuable consideration means money or money's worth, and under the latter comes the consideration of mar- riage ; hence, an ante-nuptial settlement is unimpeachable so far as consideration is concerned (d) ; but even such a settle- ment may be defeated by proof that the intended husband or wife, as the case may be, had notice that the settlor was insol- vent, and that the object of the settlement was to place the property settled beyond the reach of the settlor's creditors (e). («) Freeman v. Pope, L. E. 5 Ch. {a) Mathews v. Praser, 1 Cox, 278. 538 ; Keese Silver Mining Co. ■». (6) Thompson v. Webster, 28 L. J. Atwell, L. R. 7 Ex. 347. Ch. 700 ; In re Foster & Lister, L. E. (x) Mackay v. Douglas, L. B. 14 Eq. 6 Ch. D. 87. 106 ; Kent v. BUey, L. B. 14 Bq. 191 ; (c) Gale v. Williamson, 8 M. & W. 405. Cornish v. Clark, L. B. 14 Eq. 184. (d) Kevan v. Crawford, 6 Ch. D. 29 ; (y) Power i>. Harrison, L.B. 4 Ch. 622. Wright t>.Bedgrave,W.N. (1879)30,32. (z) Hammond v. Eussel Bull, N. P. (e) Columbine v. Penhall, 1 Sm. & Gif. 269 ; Countess of Strathmore v. Bowes, 228 ; Eraser v. Thompson, 4 D.e G. & J. 1 Ves. 27. 661. BILLS OF SALE. 169 There is no absolute rule as to the extent a grantor must be indebted to bring the grant within the statutes of Elizabeth (/). Simple indebtedness is not sufficient, nor is absolute insolvency necessary ; but an intention to delay or defraud creditors Avill be imputed, if it can be reasonably inferred the grantor had just cause to believe that his assets after deduction of the pro- perty {g) granted would be insufficient to pay his debts Qi). What is a sufficient consideration to exclude 13 Eliz. c. 5 is frequently a difficult question to determine ; it has been recently held that the assignment of leasehold property, to which a liability is attached, is in itself a conveyance for valuable considera- tion (i). A fraudulent gift, though set aside as against the donor's creditors, is not set aside as against the donor himself, or his privies ; thus, a voluntary settlement binds the settlor and his representatives Qc). The statutes of Elizabeth do not prevent a debtor from preferring one of his creditors to the rest {I), nor from trans- ferring his property to trustees for the benefit of all his credi- tors, provided the transaction be open and hona fide (m). It follows that a debtor having several creditors has it in his power to defeat a judgment creditor at any time before execu- tion levied ; thus, if A. have two creditors, B. a simple contract creditor, and C. a judgment creditor, and A. assign his property to B., such assignment will well avail at least to the value of B.'s debt (%), nor can C. in any way attack B.'s title except by proceeding against A. in bankruptcy (o). A person who seeks to avoid a transaction as fraudulent must be injured by the fraud (2>) ; but it is immaterial whether the injury be direct (/) See MiUer& Corner's Bills of Sale, (I) Gidstock d. Lyster, 3 M. & S. 4th ed. 371. (g) Derring v. Ware, 22 Beav. 189. (m) Riches v. Evans, 9 C. & P. 642 ; (A) Townend v. Toker, L. K. 1 Oh. Spenser v. Slater, L. E.. 4 Q. B. D. 13. 446; Price «. Jenkins, L. K. 5 Ch. 619; (») Holbird v. Anderson, 5 T. R. Bayspoole v. Comns, L. R. 6 Ch. 228 ; 235 ; Gladstone v. Padwick, L. R. 8 Ware v. Gordon, L. R. 1 Ex. 317. Ex. 19. (i) Teasdale v. Brathwaite, L. E. 5 (o) See post, p. 191 ; Darvill v. Terry, Ch. D. 630. 30 L. J. Ex. 353. (i) Boughton v. > Boughton, 1 Atk. (p) Haves v. Leader, Cro. Jac. 270 ; 625. ' Steel v. Brown, 1 Taunt. 381. 170 FUNDED SECURITIES OE SECURITIES ON PROPERTY. or only consequential ; hence, as we have seen, a fraudulent gift or grant may he set aside at the instance of the donor or grantor's creditors who became such as well subsequent as prior to the gift or grant (q). Section II. Validity of Bills of Sale as against Persons having a right of Distress against the Grantor. Next, as to the grantor's landlord or other person having a right of distress against him. By the Common Law every landlord on non-payment of rent is entitled to seize, with certain exceptions, whatever chattels may be on the premises — even those of a stranger — and distrain them until his claim is satisfied. If, therefore, the property comprised in a bill of sale be left on tenements for which a distress may be levied, such pro- perty will not be secure from seizure, unless privileged froni dis- tress. Hence, an article to be free from landlord's claim must be privileged, and to be valuable to the grantee of a bill of sale must also be removable by him. At Common Law things privileged from distress are divisible into two classes — (I.) things absolutely privileged; (II.) things conditionally privileged; i. e., provided that there be other sufficient distress upon the premises. I. Of things absolutely privileged there are six classes : — 1. Things annexed to the freehold. 2. Things delivered to a person exercising a .public trade to be carried, wrought, worked-up, or managed in the way of his trade or employ. 3. Cocks and sheaves of com. 4. Things in actual use. 5. Animals ferce naturae, and other things wherein no valuable property is in any person. (?) Taylor v. Jones, 2 Atk. 601. BILLS OF SALE. 171 6. Things in the custody of the law, such as property already taken damage feasant, or in execution; II. Of things conditionally privileged there are two classes : — 1. Beasts of the plough and instruments of husbandry. 2. The instruments of a man's trade or profession (r). By 2 W. & M. c. 5, s. 3, cocks and sheaves of corn lying upon any part of land chargeable with rent may be seized in the nature of a distress and sold (s) ; we may, therefore, dismiss this class of goods, and, also, as irrelevant to the present pur- pose, the privileged articles classified under 2, 4, and 5 sx(/pra, I. : thus, then, for the purposes of bills of sale, the following is a su£ficient enumeration of articles privileged from distress : — A. Things annexed to the freehold. B. Things in the custody of the law. C. Beasts of the plough and implements of husban- dry ; and, generally, the instruments of a man's trade or pro- fession. A. Things annexed to the freehold are distinguishable into : — (1) Natural products, of which it is sufficient to observe that com, grass, and similar products growing on any part of the land demised are now made liable to distress, which, however, cannot be levied upon crops actually severed from the soil and sold (t) ; and that trees, shrubs, or other plants to which the process of ripening, and being cut, gathered, made, and laid up when ripe, is not incidental, are not made distrainable ; (2) Fixtures or buildings, and other works artificially erected upon or connected with the land, otherwise than by mere juxta- position, as to which the general rule of law is, that they become part of the realty and belong to the owner thereof — Qwicquid plantatur solo solo cedit (w). The term fixture has a variety of meanings, bitt we restrict its signification to any- thing annexed to the freehold in the sense above explained, (r) Hartopp v. Simpson, 1 Sm. L. C. (m) Holland v Hodgson, L. R. 7. 0. 7th ed., 238. P. 328 ; Culling v. TufneU Bull, N. P (s) 11 Geo. IL c. 19, s. 8. 34 ; Wiltshear v.OottreJl, 1 E. & B. 674 («) 56 Geo. III. i;. 50, s. 6. 172 FUNDED SECURITIES OE SECURITIES ON PROPERTY. either actually or constructively («). Fixtures, then, as thus understood, being privileged from distress, we have to inquire under what circumstances they are removable by a grantee of a bill of sale under which they have been assigned. Questions as to the right to remove fixtures arise — 1st, between heir and executor of the owner of the inheritance (y) ; 2nd, between executor and remainderman or reversioner ; 3rd, between land- lord and tenant ; 4tb, between vendor and vendee, mortgagor and mortgagee ; 5th, between the trustees of bankrupts and other parties ; 6th, between heir and devisee. In determining the mutual rights of the above sets of competitors we also determine the right of the grantee of fixtures under a bill of sale ; for a grantee can take no higher right or title than his grantor {z). As it is only with a tenant's right to remove fixtures that we shall concern ourselves, we may pass over the other cases in which a similar question may arise with a few brief remarks. Bearing in mind the general rule that anything annexed to the freehold becomes part thereof, it is laid down — (1) as between heir and executor the privilege of removal is most limited, the heir being a greater favourite of the law than the executor {a) ; (2) as between the executors of tenant for life or in tail and the remainderman or reversioner, the privilege is more in favour of the executor than in the former case (&) ; (3) as between landlord and tenant, the greatest latitude and indul- gence is allowed to the privilegeof removal; (4) as between vendor and vendee, mortgagor and mortgagee — fixtures on a sale or mortgage will pass in the absence of any express provision to the contrary ; (5) as between the trustees of bankrupts and other parties, the trustees take not only such fixtures as the bankrupt was entitled to in his own right, but also such fixtures as were in his order and disposition, with the consent of the true owner at the time of the bankruptcy ; (6) as between heir and devisee of (x) Co. Litt. 53a ; Dearden v. Drake, 6 C. B. N. S. 798. Evans, 5 M. & W. 11. (a) Elwes v. Mawe, 3 East. 38. (y) WeBton's Case, 14 Hen. VIII., (6) Md.; see Finney «. Grice, L. K. 25J ; Liford's Case, 11 Co. 50. 10 Ch. D. 13. (z) The London Discount Co. n. BILLS OP SALE. 173 a tenant for life or in tail the heir will take, unless the fixtures could pass to the devisor's executors (c). In considering the mutual rights of landlord and tenant we may conveniently classify fixtures under three heads, viz. : — 1. Agricultural. 2. Trade. 3. Ornamental {d). 1. Agricultural fixtures or fixtures set up for the mere pur- poses of husbandry are rarely, if ever, removable at Common Law (e) ; there the general rule is that, when a lessee having annexed anything to the freehold during his term afterwards takes it away, it is waste (/). An agricultural fixture, however, set up forthepurposes of trade is removable ; thus, treps or shrubs planted, or greenhouses or hothouses erected by nurserymen and gardeners with a view to sale, may be removed (g). With this exception the Common Law does not permit the removal by a tenant of an agricultural fixture ; but this rigidness has been modified in several important aspects by two recent statutes. By 14 & 15 Vict. c. 25, s. 3, it is enacted that a tenant of a farm or lands shall be entitled to buildings, engines, or machinery, which shall not have been put up in pursuance of some obligation in that behalf, but erected at his own cost with the written consent of his landlord, for agricultural or for agricultural and trade purposes ; and such tenant may remove such buildings, engines, or machinery, provided he give his landlord or his agent one month's written notice of his intention to remove same, and leave his landlord's premises in the same plight and condition as the same were before the erection removed ; but no removal is to take place if the landlord elects to purchase the articles in question, for which he has a month's option from the time of receiving the tenant's written notice. By the 38 & 39 Vict. c. 92 (the Agricultural Holdings' (Eng- land) Act, 1875), it is enacted that a tenant shall be entitled to any engine, machinery, or other fixture he affixes to his hold- (c) Hitchman v. Walton, 4 M. & W. 62. 409. (/) Elwes v. Mawe, 3 E. 38, II. Sm. (d) Horn v. Baker, 9 East. 215. L. 0., 7th Ed., 162. (e) Shep. Touohet, 469, 470, 4 Co. (ff) Penton v. Kobart, 2 E. 91. 174 FUNDED SECURITIES OB SECURITIES ON PROPERTY. ing for which he is not under the Act or otherwise entitled to compensation, and which is not affixed in pursuance of some obligation in that behalf, or instead of some fixture belonging to his landlord, provided as follows : — (1) Before removal of the fixture the tenant shall pay all rent due, and perform or satisfy all his other obligations to his landlord in respect of the holding ; (2) in the removal the tenant shall not do any avoidable damage to any building or other part of the holding ; (3) im- mediately after the removal the tenant shall make good all damage caused thei^eby to any building or other part of the holding ; (4;) the tenant shall not remove any fixture without giving his landlord one month's previous notice in writing of his intenti6n to do so ; (5) at any time before the expiration of such notice, the landlord may, by notice in writing to the tenant, elect to purchase any fixture comprised in the notice of removal, and any fixture thus elected to be purchased shall become the property of the landlord, who shall pay the tenant the fair value thereof to an incoming tenant of the holding ; any difference as to value to be settled by reference under the Act. But nothing in the above section shall apply to a steam- engine erected by a tenant without notice in writing to his landlord of his intention to do so, or when such erection is objected to by the landlord in a written notice to the tenant (h). The Act applies to tenancies created after its passing (i), except so far as excluded by written agreement, by which the parties are enabled to adopt or reject as much thereof as advisable, but not to current tenancies, except to those from year to year or for a less term (k), as to which, however, its operation might have been excluded within two months after its passing by a written notice on either .side (I). The Act has no application except to holdings — (1) either wholly agricultural, (2) or wholly pastoral, (3) or in part agricultural, and as to the residue pastoral, (4) of two acres or more in extent (m). If now we {h) S. 63. (l) S. 57. (i) S. 5.6. (m) S. 58. (4) S. 54—65. BILLS OF SALE. 175 compare the 14. & 16 Viet. e. 25 with the 38 & 39 Vict. c. 92, we observe that the former extends to every tenancy for agriculture or for agricultural and trade purposes, whereas the latter extends only to tenancies purely agricultural or agricultural and pastoral ; that the former requires the landlord's previous express consent in writing to the erection of a fixture, whereas the latter requires no such consent except in the case of a steam-engine ; that the former has no provisions as to compen- sation, whereas the latter specially provides that a tenant shall not be entitled to fixtures where he is allowed compensation, as for the drainage, irrigation, boning, or scientific manuring of the land (n). 2. The rule as to trade fixtures or fixtures set up by a tenant for the purposes of trade was at an early period thus laid down : '' If a lessee for years make a furnace for his advantage, or a dyer make his vats or vessels to occupy his occupation during his term, he may remove them; but if he suffer them to be fixed to the earth after the term, then they belong to the lessor. And so of a baker" (o). We shall presently allude to the time within which the right to remove fixtures must be exercised ; here we need only remark that the instances given in the above extract are only illustrations, for the law is now fuUy established that it is the general right of the tenant to remove the utensils he has set up in relation to trade (p), subject to any special agreement between the parties {q), and to any reasonable local custom (r), and subject also to this important qualification, that the principal thing shall not be destroyed by the accessory. A building, however, which is but an accessory to a fixture, and built to cover it, as an engine-house, is as much removable as the fixture itself (s). (») S. 5, 53, Brown on Fixtures, Dean v. Allally, 3 Esp. 11. 3rd ed., 33. (s) Naylor v. Collinge, 1 Taunt. 19. (o) 20 Hen. VII. fo. 13, pi. 24 ; 42 (r) OuIUng v. TuffnaD, B. N. P. 34. Ed. III. fo. 6, pi. 19. 1 (s) Foley v. Addenbrooke, 13 M. & (p) Lawton v. Lawton, 3 Atk. 13 ; W. 174. 176 FUNDED SECURITIES OR SECURITIES ON PROPERTY. 3. As to ornamental fixtures (t) or fixtures set up for pur- poses of ornament or convenience, the tenant's right of removal is chiefly determined : (1) by their mode and extent of annexa- tion, (2) by their nature and constniction — as temporary or permanent, (3) by the amount of damage their removal would cause to the freehold, (4) by the existence of a custom or usage applicable to the particular case {u.) Thus, hangings, looking- glasses (v), wainscot fixed by screws, marble chimney-pieces (w), stoves and grates fixed into the chimney with brickwork, cup- boards supported by holdfasts (x), a pump fastened to the wall by an iron pin going through same, have been held removable by the tenant (y). On the other hand, a conservatory erected in a brick foundation fifteen inches deep, and intimately con- nected with the dwelling-house (z), and tapestry, forming part of the architectural design of a house, were held to be irremov- able (a). With regard to ornamental fixtures, it has been laid down that every case of this sort must depend upon its peculiar circumstances (&). Coming now to the time within which a tenant's right to remove fixtures must be exercised, it was said by Lord Holt that " after the term they become a gift in Law to him in the reversion, and are not removable" (c). According to modem decisions the tenant's right to remove continues during his original term, and during such further period of possession by him as he holds the premises under a right still to consider himself as tenant (d) ; but an outgoing tenant after expiration of his term (e), where the same is of certain duration, is not entitled tb re-enter to remove ; the rights of the parties, how- (t) See Poole's case, 1 Salk. 368 ; (o) D'Yncourt v. Gregory, L. R. 3 Herlakenden's case, i Rep. 84. Eq. 382. (u) Amos, 2nded. 92. (5) BucklandiJ.Butterfield, «5i«Mpra. (v) Beck 1). Rebow, 1 P. Wms. 94. Climie v. Wood, L. K. 4 Ex. 328 ; Pugh (w) Ex pa/rte Quinoey, 1 Atk. 478. v. Orton, L. R. 8 Eq. 626. (a) Ray V. St. Dunstan, 4 B. & C. (c) Poole's Case, ubi awpra. 686. (d) Weston v. Woodcock, 7 M. & W. (y) Grymes v. Boweren, 6 Bing. 437. 14. (z) Buckland v. Butterfield, 2 B. & (e) Leader v. Homard, 5 C. B. N. S. B. 54. 546 ; Naylor v. Collinge, 1 Taunt. 19. BILLS OF SALE. 177 ever, may be determined by special agreement or perhaps by custom (/). B. Things in the custody of the law form another class of articles which are privileged from distress ; how far the privi- lege in regard to the most important species of such articles, viz., things taken in execution, has been modified by statute, it shall now be our business briefly to explain. By the 8 Anne, c. 14, it is made unlawful to remove goods taken in execution until aU. arrears of rent that may be due, not exceeding one year's rent, shall have been first paid to the landlord of the pre- mises from which it is sought to remove the goods {g). If a lessee fraudulently carry off goods in order to avoid a distress, the lessor is empowered within five days thereafter to seize and seU the same, as if they had been actually distrained (A), except where, before such seizure, there has been a sale to a hond fide purchaser for valuable consideration (i). A distress for rent in arrear upon an expired lease may be levied even after the determination of the lease {j), provided the levy be within six calendar months after such determination, and during the continuance of the landlord's title (/<;). By 7 & 8 Vict. c. 97, s. 67, the landlord of a weekly or less than yearly tenancy, can only claim four weeks or a single greater periodical arrears of rent upon goods taken in execution. By 11 Geo. II. c. 19, ss. 1, 2, 7, landlords are empowered to distrain and sell goods fraudulently carried off the premises by the tenants, or their agents, or persons aiding and abetting them, within thirty days thereafter, and to break open houses to seize such goods fraudu- lently secured therein, except where before such distress there has been a sale to a hond fide purchaser for valuable considera- tion. By the 56 Geo. III. c. 50, sheriffs having written notice of a covenant entered into for the benefit of the owner or land- lord, that any straw, grass, &c., shall be consumed on the pre- (/) Wansborongh v. Maton, 4 A. & (i) S. 3. E. 884. \j) S. 6 ; Taylerson v. Peters, 7 Ad. (g) S. 1 ; Eisoley v. Eyle, 11 M. & W. & El. 110. 21 ; Colyer v. Speer, 2 Bro. & B. 67. W S. 7. (A) S. 2, N 178 FUNDED SECURITIES OR SECURITIES ON PROPERTY. raises, are prohibited from selling or carrying off same there- from contrary to such covenant (I) ; but are empowered to dis- pose of such straw, gi-ass, &c., subject to an agreement that the same shall be expended on the land (m), whereupon the pur- chasers shall not be liable to distress (n). By the 14 & 15 Vict. c. 25, s. 2, growing crops seized and sold under execution are to be liable for accruing rent on default of other distress so long as they remain on the premises. The operation of the above enactments is somewhat singular; the 8 Anne, for instance, does not render goods taken under an execution dis- trainable ; the execution remains valid, subject to the land- lord's right to prevent their removal untU any arrears of rent, up to one year's arrears, are discharged (o). The statute applies whether the goods belong to a tenant or to a stranger, but not where the landlord is himself the execution creditor ; nor to any but subsisting tenancies; so that a sheriff is not liable for removing goods taken in execution where the tenancy has determined before seizure, though within six months of it (p). The claim of a landlord is discharged by taking security for the rent from a third person (q.) The 11 Geo. II. does not extend to the goods of strangers (r), nor to any removal of goods which takes place before the rent became due (s), nor to a removal of the tenant's goods by one of his creditors to whom he has assigned the same in satisfaction of his debt, provided the same be bond fide, and that, although the creditor takes possession, knowing the debtor to be in distressed circum- stances, and under an apprehension that the landlord will dis- train (t). C. Beasts of the plough, implements of husbandry, and generally the instruments of a man's trade or profession, form a class of articles privileged from distress sub modo, i. e., privi- (!) S. 1. (p) Cox V. Leigh, 9 Q. B. 3-33. (m) S. 3. (g) Eothery v. Wood, 3 Camp. 24. (m) S. 6. (r) Thornton v. Adams, 5 M. & Sel. (o) Wharton v. Naylor, 12 Q. B. 673 ; 38. Forster v. Cookson, 1 Q. B. 419 ; Taylor («) Wa,tson v. Main, 3 Esp. 16 ; Band V. Iianyon, 6 Bing. 536 ; Iredale v. o. Bayham, 11 Bing. N. C. 767. KendaU, W. N. (1879) 20, ({) Bach v. Meats, 5 Man. & Sel, 200, BILLS OF SALE. 179 leged only so long as there is other sufficient distress on the premises (w). The privilege does not extend to cattle gener- ally; and the enumerated articles may he distrained before growing crops and other things distrainable only by statute (v). At Common Law the privilege does not avail against the land- lords of third persons to whom an owner commits his goods, except in the case of goods delivered to a person exercising a public trade, to be carried, wrought, worked up, or managed in the way of his trade or employ (w). The Legislature, however, has intervened in favour of wollen, worsted, linen, cotton, flax, mohair, and silk hosiery manufacturers, for it is now enacted that frames, looms, machines, materials, tools, or apparatus entrusted to any person for the purpose of being used in the above manufactures, shall not be liable to be distrained for rent, unless such rent be due from the owner of such frames, &c. (x). By the Lodgers' Goods Protection Act (y), under-tenant lodgers may protect their goods from distress by the superior landlord, by service on him of a declaration specifying that the goods contained in an annexed inventory are theirs, and by a tender to him of the rent (if any) which they may owe their immediate landlord — payment of which thus made is to be a good discharge as against the latter. Section III. VaUd/ity of Bills of Sale as aga/i/nst the Grantors Trustee in Bankrwptcy. A person becomes a bankrupt by adjudication of a registrar in Bankruptcy, on petition presented to such registrar by a creditor (z), or two or more creditors, whose debt or debts (a) Peacock v. Purvis, 2 Brol. & (y) 34 & 35 Vict. c. 97 ; Phillips v. Bing. 562. Henson, L. K. 3 0. P. D. 26. («) Piggott?;. Birtles, 1 M. &W. 441. («) Ex pa/rte Cooper; In re Baillie, (w) Miles V. Furber, L. R 8 Q. B. L. R 20 Eq. 762 ; Ex pa/rte Culley ; In 77 ; Co. Litt. 47«. re Adams, L. E. 9 Ch. D. 307. (x) 6 & 7 Vict. c. 40, s. 18, n2 180 FUNDED SECUEITIES OR SECURITIES ON PROPERTY. amount to a sum not less than £50, and founded on some act of bankruptcy. The following constitute acts of bankruptcy i — I. That the debtor has, in England or elsewhere, made a ' conveyance or assignment of his property to a trusteee or trustees, for the benefit of his creditors generally. II. That the debtor has, in England or elsewhere, made a fraudulent conveyance, gift, delivery, or transfer of his property or of any part thereof {a). III. That the debtor has, with intent to defeat or delay his creditors, done any of the following things, namely, departed out of England (6), or being out of England remained out of England, or being a trader departed from his dwelling-house, or otherwise absented himself (c), or begun to keep house or suffered himself to be outlawed. IV. That the debtor has filed in the prescribed manner in the Court a declaration admitting his inability to pay his debts. V. That execution issued against the debtor on any legal process for the purpose of obtaining payment of not less than £50, has, in the case of a trader, been levied by seizure and sale of his goods. VI. That the creditor presenting the petition has served in the prescribed manner on the debtor a summons requiring the debtor to pay, a sum due, of an amount of not less than £50, and the debtor, being a trader, has for the space of seven days, or, not being a trader, has for the space of three weeks succeeding the service of such summons, neglected to^pay such sum or secure or compound for the same {d). But no person shall be adjudged a bankrupt on any of the above grounds, unless the act of bankruptcy on which the adjudication is grounded has occurred within six months before the presentation of the petition for adjudication. (a) Philips V. Homstedt, L. R. 1 Ex. L. E. 7 Ch. 374. D. 62 ; L. R. 8 Ex. 26 ; Ex parte Gear- (d) 32 & 33 Viot. c. 71, s. 6 ; Ex son ; In re Mortimer, L. R. 8 Ch. 666. parte Weir ; In re Weir, L. E. 6 Ch. (6) Ex pa/rte Crispin ; In re Crispin, 875 ; Ex parte Astrup ; In re Lefevre, L. R. 8 Ch. 374. W. N. (1879) 62, 63, (c) Ex parte Meyer ; In re Stephany, BILLS OF SALE. 181 By section 11 the bankruptcy relates back to and commences at the time the act of bankruptcy was corapleted on which the adjudication is founded ; or, if there have been several acts of bankruptcy, at the time the first of such acts shall be proved to have been committed, within twelve months next preceding the order of adjudication ; or at the time of committing a stiU prior act of bankruptcy, if the bankrupt was then indebted to some creditor or creditors in a sum or sums sufficient to sup- port a petition in bankruptcy, and such debt or debts are still due at the time of the adjudication (e). Under this section the trustee in bankruptcy of the granter of an unregistered bill of sale is preferred to the grantee, who takes possession on the day following a secret act of bankruptcy (/). The filing of a petition for liquidation b}' arrangement is an act of bankruptcy to which the title of the trustee relates back ; he, therefore, wiU be preferred to an execution creditor seizing subsequently to such filing (g). A resolution for composition, however, has no retrospective efiect so as to invalidate securities obtained by a creditor between the filing of the petition and the first meeting of creditors (h). The debt on which the bankruptcy is founded must exist at the time of the act of bankruptcy (i). By section 4 property shall mean and include money, goods, things in action, land, and every description of property, whether real or personal; also obligations, easements, and every description of estate, interest, and profit, present or future — vested or contingent — arising out of or incident to property, as above defined. By section 15, the property of the bankrupt divisible amongst his creditors, and in the Act referred to as the property of the bankrupt, shall not comprise the following particulars : — (c) Sx pa/He Crosbie ; In re Bedell, (h) Ex parte Jones ; In re Jones, L. L. K. 7 Oh. D. 123. K. 10 Ch. 663 ; In re Kearley and (/) ExpwrteAttw&ter; /» re Turner, Clayton's Contract, L. R. 7 Ch. D. 615 L. E. 5 Ch. D. 27. (i) Ex pa/rte Hayward ; In re Hay ((/) In re Bissell Brothers, L. R. 11 ward, L. K. 6 Ch. ."546. Eq. 684. 182 FUNDED SECURITIES OE SECURITIES ON PROPERTY. 1. Property held by the bankrupt on trust for any other person. 2. The tools (if any) of his trade, and the necessary ^ wearing apparel and bedding of himself, his wife, and children, to a value — inclusive of tools, and apparel, and bedding — not exceeding £20 in the whole. But it shall comprise the following particulars : — S. All such property as may belong to or be vested in the bankrupt at the commencement of the b^ankruptcy, or may be acquired by or devolve on him during its continuance. 4. The capacity to exercise and to take proceedings for exercising all such powers in, or over, or in respect of, property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy, or during its continuance, except the right of nomination to an ecclesiastical benefice. 5. AU goods and chattels being, at the commencement of the bankruptcy, in the possession, order, or disposition of the bankrupt, being a trader, by the consent and permission of the true owner, of which goods and chattels the bankrupt is re- puted owner, or of which he has taken upon himself the sale or disposition as owner, provided that things in action, other than debts due to him in the course of his trade or business, shall not be deemed goods and chattels within the meaning of this clause. Under the Bankrupt Act all persons are divided into (1) traders and (2) non-traders. The status of each class is some- times the same, sometimes different, as may be seen from the above sections. The distinction should be borne in mind when dealing with bills of sale. Under section 6, sub-section 2, the assignment by a debtor of the whole of his property for a pre- existing debt is an act of bankruptcy (k), but the sale, at a fair price, of all a debtor's stock-in-trade to a bcmd fide purchaser, ignorant of a fraudulent intention of the seller, is not an act of (S) Siebert v. Spooner, 1 M, & W. 714. BILLS OF SALE. 183 bankruptcy, whatever that intention may be (l), nor the assign- ment of all a debtor's property in consideration of fresh advances (m), nor necessarily when there is also a power to seize after-acquired property (n), nor when the consideration is partly for an antecedent debt, and partly for a fresh advance, provided the latter be really substantial, and there be no fraud between the parties (o). An assignment of only part of a debtor's property in consideration of a pre-existing debt is not, in the absence of positive fraud, an act of bankruptcy (p). To render such an assignment fraudulent, it must be made voluntarily and in contemplation of bankruptcy, hence an assignment made in consequence of a creditor's importunity is not fraudulent (q) ; nor is the assignment of his whole property in England by a foreign trader having property abroad an act of bankruptcy (r). The result of the authorities is that, when a debtor assigns his whole property as a security for a past debt only, the assignment is an act of bankruptcy, whatever the intentions of the parties may have been. If there is also a further advance, it is not a question whether the further advance is great or small, but whether there was a bond fide intention of carrying on the business (s). In each case, looking at all the circum- stances, you have to answer these questions : Does the assign- ment include all the property, or is there a substantial exception ? Is it whoUy to secure a pre-existing debt ? and, if there is a further advance, is it a substantial one, or only one intended to give colour to a security, which is in reality made _ only for the purpose of securing a pre-existing debt ? These are questions of fact, and the answers to be given depend upon (I) Baxter v. Pritchard, 1 Ad. & EU. Cas. 213. 456 ; Leake v. Young, 5 El. & Bl. 955. (g) Arbouin v. Hanburg, Holt, 577 ; (m) Bittlestone v. Cooke, 6 Bl. & Bl. Assignees of Taylor v. Killileagh Flax 296. . Spinning Co., Ir. E. 4 C. L. 120. {n) Hutton v. Cruttwell, 1 El. & Bl. (r) Ex paHe Defries ; Me Myers, 35 15. L. T. 392. (o) Allen V. Bonnett, L. R. 5 Ch. 580. (s) JEx paHe Ellis ; In re EUis, L. R. Ip) Smith t). Timms, 32 L. J. Ex. 2 Ch. D. 797, per Meffish, L. J. ; 215 ; Tomkins v. Saffery, L. E. 3 App. Lomax v. Buxton, L. E. 6 C. P. 107. 184 FUNDED SEGUKITIES OK SECURITIES ON PROPERTY. circumstances (t). Accordingly, the assignment of one's whole property — by the acceptor to the drawer of a bill of exchange in consideration of payment thereof by him where the advance is substantial (u), by a debtor for a past debt and future credit for goods to be supplied by the creditor (x), by the grantor of a bill of sale in pursuance of a previous agreement to assign on demand for a bond fide substantial advance where such agreement involves an absolute promise {y), even though the agreement be parol (provided it be contemporaneous, and the advances are in fact made), and the assignment be by deed which contains no covenant binding the assignee to make an advance {z), — has been held not to constitute an act of bank- niptcy ; whilst the assignment of one's whole property, virith an exception, which would not pass to the trustee in bank- ruptcy (a), or with a colourable exception for a past debt (&), or by bill of sale made in pursuance of an agreement for an advance, but deferred until the debtor's circumstances are hopeless, are acts of bankruptcy (c). We have already seen that the goods of a stranger are, under certain circumstances, liable to be distrained for rent by the possessor's landlord {d). We have now to consider how the property of third parties may come to form part of a bankrupt's estate, and so accrue to his trustee. For this purpose we may_ inquire — 1. Of what the property must consist. 2. In whose possession it must be. 3. At what time that possession should exist. By section 15, sub-section 5, 32 & 33 Vict. c. 71, the pro- perty must consist of goods and chattels — which include all (t) Ex parte King ; In re King, L. K. 7 Oh. 636. 2 Oh. D. 256, per James, L. J. ; Mx (z) In re Winstanley, L. E. 1 Ch. D. parte Chester ; In re Dungate, L. R. 290 ; In re Gibson ; ex parte BoUand, L. 1 Ch. D. 293 ; Mercer v. Peterson, L. R. 8 Ch. D. 830. R. 3 Ex. 104. (a) Ex pa/rte Hawkea ; In re Keely, (u) Ex parte Reed & Steel ; In re L. R. 7 Ch. 214. Tweddell, L. R. 14 Bq^. 586. (b) Ex pa/rte Foxley ; In re Nurse, L. (x) Ex parte Sheen ; In re Win- E. 3 Ch. 615. Stanley, L. R. 1 Ch. D. 560. (c) ^a; parte Greener ; In re Vane, 46 (y) Ex parte Izard ; In re Cook, L. L. J. Ch. 76. K. y Ch. 271 5 Ex parte Fisher, L. R. (d) Ante, p. 170. BILLS OF SALE. 185 movable chattels, e.g., furniture (e), pictures (/), stock-in- trade {g), and exclude fixtures (h), e.g., fixed machinery, such as steam-engines, though removable without injury, and as between landlord and tenant (i) — and the property must not consist of things in action, except debts due to the bankrupt in the course of his trade or business. Thus, only a special class of choses in action enters into a bankrupt's assets {k). The goods and chattels must be in the possession, order or disposition of the bankrupt, being a trader, by the consent and permission of the true owner, and the bankrupt must be the reputed owner, or must have taken upon himself the sale or disposition of such goods as owner {!). The general rule is that all chattels in the bankrupt's possession, but not belonging to him are, in the absence of explanation, deemed to be in his order and disposition as reputed owner — thus, goods purchased from a trader and left undistinguished from the rest of his stock, are in his possession as reputed owner (m). So, chattels leased with or without land, will be in the reputed ownership of tiie lessee, if he be held out to the world as owner, and obtain credit by the possession {71) ; if the lease be to a stranger, the onus of proving the reputed ownership rests on the bankrupt's trustee (0) ; if to the former owner the onus of disproving the reputed ownership rests on the real owner {f) ; but, generally, a bill of sale demising chattels to the mortgagor for a limited period cannot avail against the latter's trustee in bankruptcy (g'). Goods sold and taken back on hire by the vendor are within his order and disposition (r) ; where A. pur- (e) Hiokinbotham v. Groves, 2 Car. Ch. D. 70. & P. 492. (m) White v. Wilks, 3 Taun. 116 ; (/) ExpwrU Castle, 3 Man. D. & De Thaokwaite v. Cook, 3 Taun. 487. Gf. 117. (ra) Hiokinbotham v. Groves, uhi (g) Freshney v. Carriok, 1 H. & N. sapra ; Meggy «. Imperial Discount Co., 653. L. R. 3 Q. B. D. 711. (h) Horn V. Baker, 9 East. 215 ; In (0) Lingard v. Messiter, 1 B. & C. 315. re Bowker ; Ex parte Houghton, W. N. (p) Oliver v. Bartlett, 1 Brod. & (1879) 22. Bing. 269. (i) WhitinoreD.Emp3on,23Beav.215. (2) Spaokman v. Miller, 12 C. B. N. (*) AnU, p. 182. S. 659. (i) S. 15, sub-s. 5, 82 & 33 Vict. c. 71 ; (»•) Ex pwrte Loveridge ; In re Jones, Ex parte Roy ; In re SiUence, L. R. 7 L. R. 9 Ch, 621. 186 FUNDED SECURITIES OR SECURITIES ON PROPERTY. chased her father's furniture from his trustee in liquidation, but no assignment thereof was made to her, and she continued to live with her father, whose name was over the door of the house in which the furniture was, and who paid the rates and taxes, it was held that on the father's subsequent bankruptcy, the furniture' passed to his trustee (s). Possession to take goods out of the order and disposition of a debtor must be rightful, therefore seizure by the sheriff of goods, which had been granted away by a prior registered bill of sale, does not take such goods out of the order and disposition of the grantor (t) ; but constructive or symbolical possession is in some instances as effectual as actual possession in defeating a bankrupt's trustee ; thus, the delivery of a silver fork in the name of the whole furniture comprised in a bill of sale, to- gether with the keys of the house containing same, is ap- parently, when stated in attestation clause, a sufficient delivery of possession (u). Goods comprised in a bill of sale (executed before the year 1879), which entitles the holder to take possession upon default in payment after demand, remain until demand in the reputed ownership of the gi-antor, and this, notwithstanding the registration of the bill of sale («). To be in the order and disposition of a bankrupt, goods must be in his sole possession and sole reputed ownership; therefore goods of partners, one of whom was an infant, are not in the order and disposition of the firm which commits an act of bankruptcy (y). Property vested in trustees, or deposited ■ with an agent, and assigned over, remains in the reputed ownership of the assignor until notice of the assign- ment is given to such trustee or agent (z). It was formerly (s) Ex parte M oore ; JRe Cook, 36 (y) Ex parte Dorman ; In re Lake, L. T. 560. L. R. 8 Ch. 51 ; Ex parte Brown; In re (t) Ex parte Eddy ; In re Cuthbert- Eeed, L. K. 9 Ch. D. 389 ; Ex parte son, L. R. 19 Eq. 264. Hayman ; In re Pulsford, L. R. 8 Ch. {u) Bxpwrte Cox ; In re Reed, L. R. D. 11 ; Reynolds v. Bowley, L. E. 2 ICh. D. 302 ; Ex pwrte National Guar- Q. B. i7i. diau Assurance Co.; In re Franoia, {z) Ex pwrte 'Barry; In rsFox, L. R. L. R. 10 Ch. D. 408. 17 Eq. 113 ; Kitchen v. Ibbotson, L. R. (x) Ex pairte Harding ; In re Fair- 17 Eq. 46 ; Ex parte Caldwell; In re brother, L. R. 15 Eq. 223 ; post, pp. 215, Currie, L. R. 13 Eq. 188. 216, 221. BILLS OP SALE. 187 doubtful wheth r the doctrine of reputed ownership was affected by the fs^, +.hat the possession of a mortgagor was con- sistent with the express provisions of the mortgage deed (a), but it would seem that this question is now to be answered in the negative, and that goods in the possession of a person at the time of his bankruptcy, subject to a bill of sale, which en- titles him to possession until demand of the debt and default in its payment, are within his order and disposition (6). Many things, however, are held to be exempt from reputed, ownership ; of these, the following are the principal : — 1. Things that are not goods and chattels, or debts due to the bankrupt in the course of his trade, within the meaning of s. 15, sub.-s. 5 of the Act (c). 2. Property settled ante-nuptially to the separate use of a married woman (d). 3. Chattels bequeathed to go along with a mansion-house, and not to be removed therefrom (e). 4. Partnership property (/). • 5. Things that are the subject of transactions governed by the custom of trade (g). 6. Goods entrusted to mercantile agents (bankers, factors, brokers, &c.), for sale or safe custody (h). 7. Goods appropriated from a general stock to a purchaser's use (i). 8. Property held in auter droit (k). {a) Ashton v. Blackshaw, L. E. 9 Eq. L. E. 1 Ch. D. 501 ; Ex parte Vaux ; 516 ; Ex parte Homan ; In re Broad- In re Couston, L. E. 9 Ch. 602 ; HJx bent, L. E. 12 Eq. 598. parte Watkins ; In re Couston, L. E. 8 (6) Ex parte Harding ; In re Fair- Ch. 520 ; lie Shaw, I. E. 11 Eq. 632; brother, L. E. 15 Eq. 223 ; Ex parte Ex parte Ludlow; In re Hancock, W. Cox ; In re Eeed, M swpra ; Spaok- N. (1879) 65. man v. Miller, ubi supra ; see also Ex (h) Mace v. CaddeU, 1 Con. 232 ; In parte Crawcour ; In re Eobertson, L. E. re Fawcus ; Ex pa/rte Buck, L. E. 3 Ch. 9 Ch. D. 419. D. 795 ; Ex pa/rte Bright ; In re Smith, (c) Ante, p. 173. L. E. 10 Ch. D. 566. {d) Jarman v. Woolston, 3 T. E. 618. (i) ExparteMaxiahle, 1 Gly. & Jar. 402. (e) Earl of Shaftsbury v. Eussell, 1 (i) S. 15, sub-s. 1, 32 & 33 Vict. o. 71 ; B. & C. 666. In re Blanchard ; Ex pa/rte Hattersley, (/) Ex parte Dorman ; In re Lake ; L. E. 8 Ch. D. 601 ; see Millar and Ex parte Brown ; In re Eeed, ubi swpra. Collier's Bills of Sale, 4th ed., 216, et seq. (jr) Ex parte PoweU ; In re Mathers, 188 FUNDED SECURITIES OR SECURITIES ON PROPERTY.. In these several cases the things in question, though in the possession, will not be in the reputed ownership of, respectively, the bankrupt trader, husband, tenant, partner, possessor subject to a custom, agent, vendor, or trustee. " Debts due to the bankrupt in the course of his trade," in- cludes debts payable in prmsenti or in futuro, but not debts which at the commencement of the bankruptcy are only con- tingent (h), nor debts which are unconnected with the bank- rupt's trade (i). Shares in a company are not deemed " things in action " within s. 15, sub.-s; 5, hence an equitable mortgagee of such shares who fails to give the company notice of his title, is postponed to the mortgagor's trustee in bankruptcy (k). On the other hand, a debenture issued by a Joint-Stock Com- pany undertaking to pay a sum of money with interest, and charging the company's undertaking and property with the payment thereof, is a " thing in action " within the above section; accordingly, the assignment of such a debenture by indorsement in blank, confers a good title on the assignee, although no notice of the assignment is given to the company until after the commencement of the assignor's bankruptcy {I). With regard to transactions governed by the custom of trade, it has been decided that a custom to let certain articles on hire must be clearly proved to be known to persons in the same trade as the hirer, and to others who are likely to become his creditors, in order that such custom may defeat the order and disposition clause (m) ; however, evidence, though slight, is, if uncontradicted, sufficient for this purpose (n). Goods and chattels in the reputed ownership of a bankrupt are not available to his trustee, unless such ownership be with the consent and permission of the true owner or person who {k) Expa/rte Kemp ; In re Fastnedge, Moore, L. E. 8 Ch. D. 519. L. K. 9 Ch. 383. {I) In re Pryce ; Ex parte Rensburg, (») In re Pryoe ; Ex parte Eensburg, uM supra. L. K. i Ch. D. 686. (m) In re HiU, L. E. 1 Ch. D. 603 n. (h) Ex parte Union Bank of Man- (n) Ex parte Powell ; In re Mathers Chester ; In re Jackson, L. R., 12 Eq. ubi svj»-a. 364 ; but see Ex parte Ibbotson ; In re BILLS OF SALE. 189 has the legal right to possess and deal with the property (o), a description which includes a mortgagee or trustee (p). In the following instances such consent has been held to be wanting : (1) where the goods were transferred to the bankrupt's pos- session without the knowledge of the true owner (g) ; (2) where the true owner bond fide demands restitution of the goods (r) ; (3) where the bankrupt obtained the goods by fraud (s) ; (4) where the true owner does all he can to take the goods out of the order and disposition of the bankrupt — such effort or demand being made before the act of bankruptcy (t) ; (5) of goods and chattels in the reputed ownership of the bankrupt by the consent and permission of the true owner, only such as were in his possession at the commencement of the bankruptcy, pass to his trustee (u). Hence goods (1) coming into possession of the bankrupt after his bank- naptcy (x) ; or (2) arriving on sale or return on evening pre- ceding his bankruptcy, and not selected before that event (y) ; or (S) removed by the true owner at any time before the act of bankruptcy (z), do not belong to his estate; but whether a seizure by sheriff under a fi. fa. against the reputed owner of goods, who is allowed to remain in possession, takes them out of his order and disposition, is doubtful (a). By 13 Eliz., c. 3, gifts made bond fide for valuable considera- tion are not to be deemed fraudulent, valuable consideration being money or money's worth, under which latter comes the consideration of marriage. The joint effect of this statute, and s. 6, sub.-s. 2 of the Bankruptcy Act, is to render an ante- (o) S. 15, subs. 5, 32 & 33 Vict. o. 71. Pulling, L. R. 8 Ch. 48. (p) Ex parte Dale, Buck, 366 ; Kyall (m) S. 15, sub-s. 5, 32 & 33 Vict. c. 71. V. EoUe, 1 Atk. 165. (a;) Lyon v. Weldon, 2 Bing. 334. (q) Townley v. Crump, 5 Nev. & Man. (y) Ex parte Wingfield ; In re Flor- 606. ence, L. K. 10 Ch. D. 591 ; Gibson v. (r) Ex poA-te Ward ; In re Couston, Bray, 1 Moore 519. L. B. 8 Ch. 144 ; Smith i: Topping, 2 (z) Price v. Groom, 2 Ex. 642. Nev. & Man. 421. (a) Ex ■parte Foss, 2 De G. & J. 230 ; (s) Load V. Green, 15 M. & W. 223. Barrow v. Bell, 5 El. & Bl. 540 ; (t) Burn V. CarvaDio, 4 My. & Cr. Fletcher v. Manning, 12 M. & W. 581. 690 ; Taylor v. Eckeraley, L. E. 6 Ch. See Millar and CoUier's Bills of Sale, D. 740 ; Ancona v. Rogers, L. E. 1 4th ed., 229, .230. Sx. D. 185 ; Ex pa/rte Harris ; In re 190 FUNDED SECUEITIES OR SECURITIES ON PROPERTY. nuptial settlement of property valid, though its validity may be impeached by proof that the intended wife had notice that her intended husband (the settlor) was insolvent, and that the settlement was to place his property out of the reach of his creditors (&) ; but a bill of sale cannot be impeached by the grantor's trustee in bankruptcy, on the mere ground that it was founded on an illegal consideration, where no offence against the bankruptcy laws has been committed (c). The above enactments apply to aU settlements, and to them alone are the settlements of non-traders subject ; but the settle- ments of traders are subjected to additional restrictions, for by s. 91 of the Bankruptcy Act, all settlements made by traders, except those (A) made before and in consideration of marriage ; {B) made in favour of purchasers or incumbrancers in good faith, and for valuable consideration ; (C) made after marriage on the wife or children of the settlor of property which has accrued to him in right of his wife are : (1) if the settlor be- comes bankrupt within two years after the date of the settle- ment absolutely void against his trustee in bankruptcy; or (2) if the settlor becomes bankrupt within ten years after such date, prwnd facie void against such trustee, i.e., such settle- ments are void unless the parties claiming thereunder can prove that the settlor was at the time of making the settle- ment able to pay aU his debts without the aid of the property comprised in the settlement (d). Further, every contract or covenant to settle after acquired property (not being property of or in right of his wife), even though made in consideration of marriage, is in like manner void, if the settlor becomes bank- rupt before the actual transfer of such property (e). Section 91 applies to settlements executed before, as well as after, the Act came into operation (/), but its operation is (6) Oolomblne v. Penhall, 1 Sm. & 7 Ch. D. 635 ; Ex parte Hillman ; In n Gif. 228 ; Fraser v. Thompson, 4 De G. Pumfrey, L. K 10 Ch. D. 622. & J. 661, (e) S. 91, 32 & 33 Viot. c. 71. (c) In re Mapleback; Expwrte Colde- (/) Ex pmrte Dawson ; In re Dawson, cott, L. R. 4 Ch. D. 150. L. R. 19 Eq. 433. (d) See In re Andrews' Trusts, L. R. BILLS OP SALE. 191 modified by the Married Women's Property Act, 1870 ((/). A voluntary settlement by a trader is avoided by bis subsequent insolvency within two years, if at the time the settlement was executed his debts exceeded his assets ; nor does it matter that no debt which then existed remains due when the insolvency supervenes (h). So, a voluntary settlement of an estate subject to a mortgage, with a covenant that the settlor would pay interest on the mortgage, and when required would pay off the principal, is avoided by the bankruptcy of the settlor, if his assets, exclusive of the mortgaged estate, though sufficient to pay his debts other than the mortgage debt, be insufficient to pay both (i). A covenant to settle money on the trustees of a trader's marriage settlement is not a covenant within s. 91, for the future settlement of money or property in which the trader had no interest (k). A bill of sale giving a power to seize after acquired property is defeated by the liquidation of the grantor under the Bankruptcy Act (l). The 13 EHz. c. 5, does not prevent a debtor from preferring one of his creditors, but by section 92 of the Bankruptcy Act, which extends to non-traders as well as traders, all conveyances, payments, obligations, or judicial proceedings made, incurred, taken, or suffered in favour of a creditor, with a view of giving him a preference over his other creditors, by a person who be- comes bankrupt within three months thereafter, are to be void against his trustee in bankruptcy ; but this section does not affect the rights of a purchaser, payee, or incumbrancer, in good faith, and for valuable consideration. To constitute a fraudulent preference under section 92, there must be (1) a contemplation of bankruptcy by the person making the transfer or payment, (2) such transfer or payment must be voluntary on his part (m). ig) Holt V. Everall, L. K. 2 Ch. D. R. 1 Ch. D. 302. 211. (4) Ex parte Bishop ; In re Tonnies, {h) Ex pwrte Huxtable ; In re Coui- L. B,. 8 Ch. 718 ; Ex parte Bolland • beer, L. B,. 2 Ch. D. 54 ; Crossley v. In re C 1, L. R. 17 Eq. 115. ' Elworthy, L. R. 12 Eq. 158. (0 Thompson v. Cohen, L. R. 7 Q B (i) Taylor v. Cocknmi, L. R. 1 Ch. 527 ; Ante, p. 181. D. 636 ; Ex parte Cox ; In re Reed, L. (m) Middleton v. Pollock ; Ex parte 192 FUNDED SECURITIES OR SECURITIES ON PROPERTY. The rule appears now to be so far settled. A debtor must not of his own mere motion, without pressure or application, give a security to a creditor on thfe eve of bankruptcy, and, if he does, that is a fraudulent preference. But, if there be any pressure or negotiation for a security on the part of the creditor, then the fact that the creditor knows the debtor to be in embar- rassed circumstances, is no objection to the validity of the security. He may know him to be greatly pressed — he may know him to be surrounded with difficulty, and yet may urge him for a security, and if in consequence of that pressure he gets a security it is within the saving of the 92nd section (n). The present Bankruptcy Act does not avoid a transaction which was not a fraudulent conveyance under the old law (o) ; therefore, a conveyance or payment in pursuance of a previous verbal agreement is not a fraudulent preference (p) ; and, un- less it is clear to the Court that the debtor's sole motive was to prefer the creditor paid, to the other creditors, a payment can- not be impeached, even although it be obviously in favour of a creditor (q). Where a debtor assigns his whole property to a creditor, it rests upon the latter to prove there has been no fraudulent preference (r). Pressure, however, is no answer, if the transaction be fraudulent in its inception (s), nor is the assignment of part of his property by a man who is unable to meet his engagements to a trustee for a special class of credi- tors, prevented from being a fraudulent preference by any amount of pressure (t). In fact, any cessio lonorum made by an insolvent on the eve of his bankruptcy,. for the benefit of some creditors to the exclusion of others, or any scheme or arrangement made for the distribution of the assets by such person otherwise than according to the provisions of the bank- EUiott, L. E. 2 Ch, D. 489 ; In re Pilgrim, uU supra. Craven & MarehaU, L. E. 10 Bq. 83 ; (q) Ex parte Topham ; In re Walker, Hunt V. Mortimer, 10 B. & C. 44. L. E. 8 Oh. 614; Ex parte Halliday; In {n) Smith v. Pilgrim, L. E. 2 Ch. D. re Liebert, L. E. 8 Ch. 283. 127, per Malins, V.C. (r) iJcTate ; Ex parteTate, 25W. E. 52. (o) In re Craven & Marshall, L. E. (s) Ex pa/rte Eeader : In re Wrigley, 6 Ch. 70 ; 10 Eq. 83. L. E. 20 Eq. 763. (p) lUd. Ex paHe Kevan ; In re (t) Tomkins v. Saffery, L. E. 3 App. Crawford, L. E. 9 Ch, 752 ; Smith v. Cas. 213 ; 4 Ch. D. 555. BILLS OF SALE. 193 ruptcy laws, is a plain and palpable fraud on the bankruptcy laws, a plain and palpable fraud upon tbe creditors, who are ■excluded or disappointed, or who may be delayed or hindered thereby (u). On the other hand, pressure or no pressure does not in the slightest degree matter, if there is not a fraudulent intent to prefer one creditor to the others, and does not invali- date a transaction subject to the protection of the concluding words of the section (x). The words are : — " This section shall not affect the rights of a purchaser, payee, or incumbrancer, in good faith, and for valuable consideration ; " which is thus interpreted : — " payee " means a person receiving payment as a creditor; " in good faith " means without notice that any fraud or fraudulent preference is intended ; " for valuable consideration " means other than on a voluntary bond or covenant for which no value was given, or else applies to a purchaser or incumbrancer, and not to a payee (y). The Legis- lature, it is suggested, intended to say — if you, the debtor, for the purpose of evading the operation of the bankrupt laws, and in order to give a fraudulent preference, make this payment or this charge, it shall be wholly done away with except in cases where the person you have so favoured is wholly ignorant of your intentions to favour him, and receives payment simply for valuable consideration and bond fide, i. e., without any notice of any intention on your part fraudulently to favour one creditor above another ; a hond fide creditor is therefore protected (z). Persons, having notice of an act of bankruptcy, available for adjudication, cannot prove for any debt or liability contracted with them by the bankrupt subsequent to the date of such («) Ex p&rte Saffery ; In re Cooke, L. L. 839 ; Ex parte Butcher ; in re E. i Ch. D. 555. Meldrum, L. E. 9 Ch. 752 ; Ex parte (re) Ex parte BoUimd ; in re Cherry, Norton ; in re Golden, L. R. 16 L. R 7 Ch. 24 ; Ex parte Blackburn ; Eq. 397 ; Ex parte London & City in re Cheeaeborongh, L. E. 12 Eq. 358 ; Banking Co. ; in re Brown, L. R. 16 Ex parte Carlisle Banking Co. ; Be Eq. 391. Walton, 36 L. T. 522. (z) Butcher v. Stead, ubi auprH. (y) Butcher v. Stead, L. E. 7 H, 194 FUNDED SECURITIES OR SECURITIES ON PROPEKTY, notice (a) ; but a bill of sale, executed with notice of an act of bankruptcy by the mortgagor, is good for the amount paid by the mortgagee in discharge of prior registered bills of sale executed before the act of bankruptcy, although the old bills are not transferred to the new mortgagee, but satisfaction is entered up upon them (6). Moreover, the following transactions are expressly made valid : — 1st, payments in good faith and for value received ; 2nd, payments or delivery of money or goods belonging to a bankrupt; 3rd, contracts or dealings in good faith and for valuable consideration — made to or with a bankrupt before thedate of the order of adjudication by a person not having at the time of such payment, delivery, contracts, .or dealings, notice of any act of bankruptcy committed by the bankrupt and available against him for adjudication (c). Section 94, sub.-s. 3, modifies section 15, sub-s. 5, so that goods in the order and disposition of a debtor at the time of his bankruptcy, may nevertheless avail the holder of a bill of sale, who, bond fide, _ and without notice of an act of bankruptcy, takes possession before the date of the order of adjudication (d), such taking of possession being a dealing with the bankrupt within the sec- tion (e). Notice of an intention to commit an act of bankruptcy is not notice of an act of bankruptcy ,.and the creditor receiving such notice is not bound to inquire whether the act has been com- mitted, but is entitled to avail himself of his remedies just as if he had received no notice (/). Again, where the goods of any trader have been taken in execution in respect of a judgrnent exceeding £50 and sold, the sheriff, or, in the case of a sale, under the direction of the County Court, the high bailiff of the County Court shall retain the proceeds of such sale in his hands for a period of fourteen days, and upon notice being served on him within (a) S. 31, 32 & 33 Vict. c. 71. L. E. 8 Oh. D. 367. (6) Ex parte Harris ; in re James, L. (c) In re Wright ; Ex pa/rte Arnold, R. 19 Eq. 253. L. R. 3 Ch. D. 70. (c) S. 94, 32 & 33 Vict. c. 71. (/) lUd, [d) Ex parte Barbidge ; in re Pooley, BILLS OP SALE. 195 that period of a bankruptcy petition having been presented against such trader, shall hold the proceeds of such sale after deducting expenses, on trust to pay the same to the trustee ; but if no notice of such petition having been presented be served on hitn within such period of fourteen days, or if such notice having been served, the trader against whom the petition has been presented is not adjudged a bankrupt on such petition, or on any other petition of which the sheriff has notice, he may deal with the proceeds of such sale in the same manner as he would have done had no notice of the presentation of a bank- ruptcy petition been served on him {g). The 87th section virtu- allyclassifies executions against bankrupts under two heads — 1st, against non-traders for any sum and traders for any sum less than £50 ; 2nd, against traders for any sum_of £50 or more ; execution creditors under executions belonging to the first class become secured by seizure of the sheriff Qi) ; execution creditors, under executions belonging to the second class, do not become secured until a seizure and sale by the sheriff, and a lapse of fourteen days from such sale within which no notice of the presentation of a bankruptcy petition against the execution debtor is given to the sheriff. The seizure before an act of bankruptcy for a debt less than £50 is good, though there be no sale till after the adjudication {i), and, where the execution debtor is a non- trader, such seizure is good for a debt of any amount (Ic). An execution levied by seizure and sale of a trader's goods for over £50 is an act of bankruptcy, yet not a void proceeding, so that if no notice of a petition for adjudication be given to the sheriff within fourteen days of the sale, the execution creditor is entitled to the proceeds (I) ; but if there be two executions by the (g) S. 87, 32 & 3.3 Vict. u. 71. An (k) Sneary v. Abdy, L. E. I. Ex. D. execution issued for less than £50 on a 299 ; Ex pa/rte Williams ; in re Davies, judgment signed for more than £50 is L. K. 13 Eq. 314; JEx parte Bailey; m not within the section ; In re Hinks ; re Jeeks, L. R. 13 Eq. Sx parte Berthier, L. E. 7 Ch. D. 882. {I) Ex parte Villars ; in re Rogers, L. (A) Post, pp. 396,397. R. 9 Ch. 432 ; Ex parte James, L. R. 9 (i) Slater v. Pinder, L. R. 6 Ex. 228 ; Ch. 609 ; Stock v. Holland, L. R. 9 Ex. 7 Ex. 95 ; Ex parte Levering ; in re 147. Peagock, L. R, 17 Ecj. 452, 2 196 iUNDED SECURITIES OR SECURITIES ON PliOPERTY. same creditor against a trader, each for over £50, the proceeds of the second execution will belong to the debtor's trustee in bank- ruptcy (m). When the debt for which execution is levied, and the sheriff's fees together exceed £50, the execution is within section 87 (n); such fees include all expenses the^heriff'is entitled to charge at the time of sale ; therefore possession money may be included where the sheriff is compelled to take possession (o). The assignment by a trader of property seized for a debt of more than £50 to the judgment creditor, in consideration of his withdrawing the execution, is an act of bankruptcy, and a void proceeding {p) ; but payment to the sheriff before delivery in execution is not an act of bankruptcy (g) ; so, the sheriff may sell the goods seized to the execution creditor by private contract, and of goods seized on different days, the sale by the sheriff is considered one transaction (r). However, an order for sale and payment to an execution creditor is defeated by the subsequent bankruptcy of the debtor before the sheriff has sold (s). The notice to the sheriff of the presentation of a petition of bankruptcy, against an execution trader debtor for over £50, should identify the debtor as a trader, otherwise the sheriff need pay it no attention {t). Section 87 of the Bankruptcy Act apphes to companies in liquidation, under section 10, 38 & 39 Vict. c. 77 {u). Subject to ss. 87, 91, 92, the following transactions are valid: — (m) Ex parte Dawes ; in re Husband, vM suprci. Ii. R 19 Eq. 438. (s) Ex parte HoUing ; in re Haydon, (n) Ex parte Liverpool Co. ; in re L. R. 7 Ch. D. 157. BuUen, L. R 7 Ch. 733. (() Ex parte Spooner ; in re Smith (o) Howes V. Young; Howes v. Jj. B,. 10 Ch. 168 ; Ex parte 'Raynei; in Stone, L. R 1 Ex. D. 146 ; Ex parte re Johnson, L. R 7 Ch. 325 ; Ex parte Sims; in re G-rubb, L. R. 5Ch. D. 735; Viness; in re Gwynne, L. RIO Eq. 4 Ch. D. 521. 419 ; In re Norton, L. R 10 Eq. 425 ; (p) Woodhouse v. Murray, L. R. 4 Ex parte Key ; in re Skinner, L. R. 10 Q. B. 27 ; Ex parte Cooper ; In re Baum, Eq. 32. L. K. 10 Ch. D. 313 ; Philips v. Horn- (u) In re Printing & Universal Regis- stedt, L. R 1 Ex. D. 62, disapproved. tering Co., L. E. 8 Ch. D. 535 ; In re {q) Stock V. Holland, L. R 9 Ex. Th^rfese and Co., W. N. (1879) 31 ; . 147 ; Ex parte Brooke ; in re HasseU, Moor v. Anglo-Italian Bank, L. R 10 L. E. 9 Ch. 301. Ch. D. 681 ; sed qmere In re Eiehards (r) Ex parte Villars ; in re Eogers, and Co., W. N. (1879) 65, BILLS OF SALE. 197 1st. Dispositions of property, — 2nd. Executions or attachments executed by seizure against a bankrupt's land, — 3rd, Executions or attachments executed by seizure and sale of a bankrupt's goods, — made in good faith before the date of the order of adjudication, with or on account of any person, not having at the time of such disposition or execution notice of any act of bankruptcy committed by the bankrupt and avail- able against hinn for adjudication (x). Under the above provisions notice of an act of bankruptcy means notice of an act of bankruptcy upon which an adjudica- tion may be foimded (y), committed prior to the seizure ; the onus, however, of proving the want of notice is on the execu- tion creditor who claims protection (z). Notice may be actual or constructive as by wilfully abstaining from acquiring know- ledge (a) ; actual notice should convey specific information as to acts constituting bankruptcy, and not leave room for doubt ; thus, a notice stating circumstances which may or may not amount to an act of bankruptcy is insufficient (&). More- over, the notice must be to the person actually dealing with the bankrupt (c) ; hence, notice to the sheriff's officers in possession tmder an execution against the bankrupt is not notice to the creditor (d). SjEcnox rv. The Bills of Sale Acts. We have now stated under what conditions a bill of sale will avail against the grantor's creditors, landlord, and trustee in bankruptcy ; by fulfilment of those conditions a biU of sale in («) 32 i 33 Vict. c. 71, s. 95 ; £«; E. 8 Ch. 248. parte Cochrane ; In re Cross, W. N. " (z) Ex parte Schulte ; in re Hatanl^, (1879) 28. Where the transaction is L. K. 9 CK 409. aToided under BiUs of Sale Act, sa. 94, (a) Bird r. Baas, 6 M. & G. 143. 95 are inoperative, nee post, pp. 214, (6) Evan8w.HaUani,LR. 6 Q. B. 713. 215. Bx parte Attwater ; m re Tomer, (c) Green t. Steer, 1 Q. B. 710. L. R. 5 Ch. D. 27. (d) Ex parte Schnlte ; in re Matanl^ (>/) Ex parte Gilbey ; in re Bedell, L. vbi tupra. 198 FUNDED SECURITIES OR SECURITIES ON PROPERTY. its inception avails against the world at large. But only in its inception ; for when comprising property left in the possession or apparent possession of the grantor, if not duly registered within twenty-one (or within seven) (e) days from its execution, it will avail against the grantor, his representatives and subse- quent grantees of bills of sale, but not against the grantor's trustee in bankruptcy, his assignees under any assignment in liquidation for benefit of his creditors, against the sheriffs officers seizing in execution of process, or against persons on whose behalf such process shall have been issued (/) ; and such registration must be renewed every five years, otherwise it will cease to be of any effect at the expiration of any such period during which it has not been renewed {g). A bill of sale is registered by being itself or a true copy (which is the more usual and may in future be the necessary course) (e) (Ji) filed within twenty-one (or within seven) days (e) from the time it was made with the clerk of the docquets or master acting as registrar in the Queen's Bench Division, together with an affidavit of the time of such bill of sale being made or given (and of its due execution and attestation) (e) (h), and a descrip- tion of the residence and occupation of the party giving the same, or against whom process issued, if given in the execution of any process, and of the witness or witnesses who must all attest such affidavit (i). The bill of sale must be produced to the officer duly stamped (Ic), though an instrument improperly stamped originally may be properly stamped on registration (I); and any defeazance must be written on the same paper or parchment as the bill, before the same or a copy thereof can be filed (m). On and after January, 1879, the execution of every (e) If made in England on or after post, p. 219. Ist January, 1879 ; 41 & 42 Vict. u. 31, («) S. 1, 17 & 18 Vict. c. 36 j t. 10, ss. 2, 3, 8, 24. subs. 2, 41 & 42 Viot. c. 31 ; Piokard (/) 17 & 18 Vict. 0. 36, s. 1. The v. Marriage, L. K. 1 Ex. D. 364. corresponding Irish Act is 17 & 18 Vict. (h) 33 & 34 Vict. c. 97, o. 57. c. 55. (I) Bellamy v. Saul, 32 L. J. Q. B. 366. (g) 29 & 30 Vict. c. 96, s. 4 ; 41 & (m) S. 2, 17 & 18 Vict. c. 36 ; s. 10, 42 Vict. c. 31, s. 11. subs. 3, 40 & 4J Viot. c. 31. (h) 41 & 42 Vict. ^. 31, ss. 10, 12, BILLS OF SALE. 199 bill of sale shall be attested by a solicitor of the Supreme Court and the attestation shall state that before the execution of the bill of sale the effect thereof has been explained to the grantor by the attesting solicitor (n). The registration of a bill of sale is renewed by some person filing in the office of the Masters of the Queen's Bench Division (being the officers acting as clerk of the docquets and judgments in the Court), an affidavit stating the date of such biU of sale (and the last registration thereof), and the names, residences, and occupations of the respective parties thereto as stated therein, and that such bill of sale is still a subsisting security, and such master shall thereupon number such affidavit, and renumber the original bill of sale or copy, filed in the office with a similar number (o) ; such affidavit must bear an adhesive Common Law stamp of the value of 5s., which is the only fee chargeable (p). In the office of the Masters of the Queen's Bench Division a book is kept in which are entered in a form prescribed, as and when all bills of sale, copies, and affidavits of renewal were respectively filed, also the name, residence, and occupation of every person by whom a bill of sale is given, or, if given by a person under execution of process, then the name, residence, and occupation of the person against whom such process issued ; also, the name of the person to whom oi- in whose favour the bill is given, together with the number and date of the bill or copy thereof, the date of registration, and the date of filing the affidavit of renewal (q), and any one may search the said book and bills of sale, or copies and affidavits filed as aforesaid, on payment of Is. for every search against one person ; and office copies of a bill of sale or affidavit of renewal may be had on payment for the same at the like rate as for office c^ies of judgments in the Queen's Bench Division (r). Any judge of the Queen's Bench Division may in) Ibid., subs. 1. (2) S. 7, 29 & 30 Vict. c. 96, Sch. B ; (o) S. 5, 29 & 30 Vict.-c. 96 ; s. 12, s. 12, 41 & 42 Vict. c. 31, Sch. B. 41 & 42 Vict. c. 31. {r) S. 8, 29 & 30 Vict. c. 96 ; s. 15 ; ip) S. 6, 29 & 30 Vict. o. 96, Sch. A ; 17 A 18 Vict. c. 36 ; 8. 16, 41 & 42 0. 18, 41 & 42 Vict. c. 31, Sch. A. Vict. >;. 31. 200 FUNDED SECURI'CIliS OR SECURITIES ON PROPERTY. order an entry of satisfaction on any bill of sale or copy thereof filed as aforesaid, if it shall appear to him that the debt for which such bill was given is satisfied (s), but on and after 1st January, 1879, the above power is ti'ansferred to the Masters' of the Queen's Bench Division acting as registrar (f). In construing the Act the following words and expressions shall have the meanings hereby assigned to them, unless there be something in the subject or context repugnant to such con- structions (that is to say) : — The expression " biU of sale " shall include bills of sale, assignments, transfers (u), declarations of trust without trans- fer (x) [inventories of goods with receipt thereto attached, or receipt for purchase moneys of goods] (y), and other assurances of personal chattels, and also powers of attorney, authorities or licenses to take possession of personal chattels (z), as security for any debt, [and also any agreement whether intended or not to be followed by the execution of any other instrument by which a right in equity to any personal chattels, or to any charge or security thereon shall be conferred] (y), but shall not include the following documents ; that is to say, assignments for the benefit of the creditors of the person making or giving the same (a) ; marriage settlements ; transfers or assignments of any ship or vessel or any share thereof (b) ; transfers of goods in the ordinary course of business of any trade or calling (c) ; bills of sale of goods in foreign parts or at sea ; bills of lading ; India warrants, warehouse keepers' certificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise. (b) S. 6, 17 & 18 Vict. c. 36. (s) Expm-te Crawcour ; in re Eobert- (t) S. 15, 41 & 42 Vict. 0. 31. son, L. R. 9 Ch. D. 419. (u) Robinson v. CoUingwood, 34 L. (a) The General Furnishing and Up- J. C. P. 18. holstery Co. v. Venn, 32 L. J, Ex. 220. (x) Coole V. Braham, L. R. 4 Ex. (5) The Union Bank of London v. 183. Lenanton, L. R. 3 C. P. D. 243. (y) On and after Ist January, 1879, (c) Merchant Banking Co. v. Spotten, 41 & 42 Vict. c. 31, 6B. 2—4, Jr. R. 11 Eq. 586. BILLS OF SALE. 201 either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented (d) : The expression "personal chattels " under 17& 18 Vict. c. 36 shall mean goods, furniture, fixtures, and other articles capable of complete transfer by delivery, and shall not include chattel interests in real estate, nor shares or interests in the stock, funds, or securities of any government, or in the capital or property, of any incorporated or joint-stock company, nor choses in an action, nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement or of the custom of the country, ought not to be removed from any farm where the same shall be at the time of the making or giving of such biU of sale. Personal chattels shall be deemed to be in the " apparent possession " of the person making or giving the bill of sale, so long as they shall remain or be in or upon any house, mill, warehouse, building, works, yard, land, or other premises occu- pied by him, or as they shall be used and enjoyed by him in any place whatever, notwithstanding that formal possession thereof may have been taken by or given to any other person (e). The questions to which the BiUs of Sale Acts have so far given rise may be ranged under the five following heads : — 1. What instruments answer the description of bills of sale requiring registration. 2. What property is included in the expression "personal chattels." 3. What is sufficient to constitute apparent possession. 4. What description in the bill of sale and accompanying affidavit satisfies the prescribed requirements. 0. What is the general effect of the three statutes. 1. What instruments answer the description of bills of sale requiring registration. — Section 1, 17 & 18 Vict. c. 36, provides that every bill of sale made after the passing of the Act, either id) a. 7, 17 & 18 Vict. 0. 36 ; S. i, («) /» re Bainbridge ; ex parte Flet- 41 & 42 Vict. u. 31. cher, L. K. 8 Ch. D. 218. 202 FUNDED SECURITIES OR SECURITIES ON PKOPERTY. absolutely or conditionally, or subject or not subject to any trusts, and whereby the grantee or holder shall have power either with or without notice, and either immediately after the making of such bill of sale, or at any future time, to seize or take possession of any property and effects comprised in or made subject to such bill of sale, and every schedule or inven- tory which shall be thereto annexed or therein referred to, or a true copy thereof, and of every attestation of the execution thereof, shall be registered in the prescribed manner (/). This, with the explanatory section above quoted, furnishes the means of determining whether, as the law now exists, and will continue to exist up to 1st January, 1879, any given instru- ment requires to be registered; and, applying this test, the Court holds that an equitable assignment of goods {g), or an agreement to give a bill of sale, if relied on as an equitable assignment of property Qi), or an assignment in trust operating as a bill of sale (i), or, in general, any equitable security which gives a right to take possession through the agency of the Court (A), is within the required formality; also, that the registration of a deed which omitted a parol agreement, that the debt should be paid off by weekly instalments, is insuffi- cient, on the ground that such agreement amounts to a condition or defeazance, and therefore requires registration (Q, but a memorandum for payment of £30 bonus is not a con- dition requiring registration (m). A deed by which a debtor covenants that, if the debt be not paid on a day named, certain chattels shall be charged with it, and that, when required, he will assign them to the creditor as security, requires registration {n) ; but an agreement to give a bni of sale need not be registered, and where a bill was exe- (/) S. 7, 17 & 18 Vict. c. 36. (h) Edwards v. Edwards, L.R 2 Ch. (g) Ex parte Coming ; in re Steele, D. 291. L. E. 16 Eq. 414. (I) Expm-te Southam ; in ri Southam, (A) Ex parte Mackay ; ex ■parte L. K. 17 Eq. 578. Brown ; in re Jeavons, L. R. 8 Ch. (m) Ex pa/rte Collins ; in re Lees, L. 643. R. 10 Ch. 637. (i) Asbton V. Blackshaw, L. Ri 9 Eq. [n) Edwards v. Edwards, ubi supra. 510. BILLS OF SALE. 203 cuted in 1870, in pursuance of an agreement made in 1868, and the grantor filed a liquidation petition on the day the bill was executed, but subsequent to the execution thereof, it was held that, on registration within twenty-one days, the bill of sale was good against the grantor's trustee in bankruptcy (o). A receipt, which is really a mortgage, requires to be regis- tered (p) ; but not a mere receipt for a past debt (q), nor an equitable interest, as distinguished from a power to seize (r), nor a mercantile transaction of advance and pledge, nor a letter of hypothecation which only gives a promise to grant posses- sion, not a power to seize (s), nor an agreement giving a lien on bills of lading and each shipment of goods in transit out- wards, or in the hands of consignees or any other person, and also upon the proceeds or produce purchased with the pro- ceeds of each such shipment in the hands of consignees or any other person, or in the transit homewards (t), nor the assignment of a bill of sale executed before the Act came into operation (u). Thus far, then, as to the law up to the 1st January, 1879. On and after that date the Bills of Sales Acts, 1854, 1866, are repealed (except as regards biUs of sale executed before that date), and the BUls of Sale Act, 1878, comes into force (a;). The general effect of that statute will be considered under our fifth head (y) ; under the present head we have only to inquire what instruments will in future answer the description of bills of sale requiring registration. At first sight, it would seem that aU instruments which had to be registered under the old, will also have to be registered under the new legislation, which, (o) Ex parte Homan ; in re Broad- 272. bent, L. R. 12 Eq. 598. (s) Ex parte North- Western Bank ; (p) /ts re Bamfield ; co! ^arte Newport m re Slee, L. B. 15 Eq. 69. Credit Co., 20 W. B. 925. («) Ex parte. Watson ; in re Love. L. (j) Byerly v. Prevost, L. E. 6 C. P. B. 5 Oh. D. 35 ; Graham v. Wilcock- 124 ; Allsop V. Day, 31 L. J. Ex. 105 ; son, 46 L. J. Ex. 35. sed qumre Ex pcurte Cooper ; In re Baum, {«) Re Shaw ; ex pwte Shaw, 36 L. L. B. 10 Ch. D. 313 ; ex parte OdeU ; T. 805, 25 W. B. 686. In re Walden, L. B. 10 Ch. D. 76. See [x) S. 23, 41 & 42 Viot. c. 31. Woodgate». Godfrey.L. B. 4EX.D.59. (y) Posi, p. 219. ()•) Brown V. Battman, L. B. 2 0. P. 204 FUNDED SECURITIES OR SECURITIES ON PROPERTY. SO far from curtailing the scope of registration; expressly ex- tends it to several cases where it was formerly unnecessary (z). We must not, however, be too hasty in concluding between the relative comprehensiveness of the two statutes, for it is perhaps doubtful if the recent enactments extend to conditional bills of sale. The language of section 3 (a) does not much differ from that of section 1 of the earlier Act, except that nothing is said of bills of sale made conditionally ; hence, the inference that such biUs of sale are not within the wording of the new Act, though they are clearly within its spirit ; indeed, it may be urged that the expression, " bill of sale, made or given sub- ject to any defeazance or condition," occurring in section 10, covers the case of conditional bills of sale, notwithstanding a similar provision in the earlier statute (6). Whatever be the true construction on that point, it is clear that in other respects the Act of J. 878 is more comprehensive than its predecessor. Thus, in addition to the instruments included under the latter,' the expression bill of sale shall also for the future include — (1) inventories of goods with receipt thereto attached; (2) re- ceipts for purchase moneys of goods; (3) any agreement whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shaU be con- ferred (c) ; (4) any attornment, instrument, or agreement, not being a mining lease, whereby a power of distress is given Qr agreed to be given by any pe rson to any other person by way of security for any present, future, or contingent debt or advance, and whereby any rent is reserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only as regards any personal chattels which may be seized or taken under such power of distress, provided that the above shall not extend to any mortgage of any estate or interest in any land, tenement, or hereditament which the mortgagee, (z) Infra. 36, s. 2. (a) 41 &, 42 Vict. c. 31. (c) S. 4, 41 & 42 Vict. o. 31. (6) Ibid., s. 10 (3) ; 17 & 18 Vict. c. BILLS OF SALE. 205 being in possession, shall have demised to the mortgagor at a fair and reasonable rent (d). It is not without much diffidence that we submit the fore- going as an accurate statement of the new classes of instru- ments to which the expression bill of sale is extended^ We are not at all sure that to be within the recent Act the inven- tories and receipts above specified must not be given as security for some debt. No doubt the punctuation in section 4 (e) excludes that qualification, but the subsequent provision in the same section, that transfers of goods in the ordinary course of business of any trade or calling, shall not be included in the expression bill of sale, appears to be at variance with what had gone before, and one can hardly believe that the Legislature intended to abolish the distinction that had been taken on the 17 & 18 Vict., between a mere receipt and a receipt that really amounts to a mortgage (/). , If such be the intention, a person who goes into a shop and gets receipts for the goods he has purchased and paid for, will not be safe unless he remove such goods, or duly register such receipts — a conse- quence which might result in putting a purchaser who had obtained no receipt in a better position than one who had (g). It will be observed that the inventories spoken of are inven- tories with receipt thereto attached. It is not quite plain whether this provision will in any way affect the old rule, which is re-enacted in sect. 10, sub-s. 2, 41 & 42 Vict. c. 31, requiring registration of every inventory annexed or referred to in a bill of sale. To us it appears that section ' 4 only con- templates inventories which are unaccompanied by any other (d) Ibid., s. 6 ; In re Stockton Iron ment against the literal construction. Furnace Co., L. E. 10 Ch. D. 335 ; Ex inasmuch as that result is accepted in parte Auckland Building Society ; In similar cases without demur, as in the re Raine, W. N. (1879) 28 ; Ex parte instance of an equitable mortgage of Williams ) In re Thompson, L. R. 7 Ch. lands within a register county, where D. 138. the omission to register a memorandum (i) 41 & 42 Vict. c. 31. accompanying the deposit of the deeds, (/) In re Bamfield ; ex parte New- will put the mortgagee in a position port Credit Co., 20 W. R. 905 ; Byerly worse than if there liad been no mtmo- V. Prevost, L. R. 6 C. P. 124. Ante, randum ; post, pp. 224, 225. We aa-e p. 203. here only stating an inference. See (ff) We do not urge this as an argu- Woodgate v. Godfrey, L. K. 4 Ex. D. 69. 206 FUNDED SECURITIES OR SECURITIES ON PROPERTY. instrument, and does not interfere with, the subsequent section, and that if, therefore, there be a bill of sale and a distinct inventory not annexed or referred to, but specifying the goods contained in the bill of sale, the non-registration of such in- ventory cannot invalidate the registration of the bill of sale. In extending the expression bill of sale to the agreements comprising the third of the classes above mentioned (Ji), Par- liament has apparently left no loophole for evading registration of an instrument which in substance confers the same advan- tages as a formal bill of sale. For the future, a person who is virtually an unregistered mortgagee of personal chattels cannot escape the Bills of Sale Act by merely setting up the absence of a formal or final instrument, and that his title is only equitable; such a doctrine as that laid down in ex parte Homan, in re Broadbent, is overruled (i). Indeed, so sweeping are the vrords of section 4, that it seems impossible to frame a security not needing registration, and not being specially exempted therefrom, and at the same time giving any kind of specific right to personal chattels. And that result is further insured by section 6, which prevents the indirect evasion of section 4 by requiring registration of instruments which under the guise and power of distress are really securities for the payment of interest, enabling the creditor to seize his debtor's goods. From the operation of section 6 are exempted — (1) mining leases ; (2) demises by a mortgagee in land in pos- session to the mortgagor as his tenant, at a fair and reasonable rent ; (3) instruments reserving a power of distress, and rent other than as a means of securing any debt or interest thereon only. The foregoing exemptions are subject to the provisions regarding trade fixtures (k). 2. What property is inclvded in the expression "personal chattels." — To the above phrase, the Bills of Sale Act, 1854, has attached a peculiar meaning, which is at once in some respects more, and in other respects less, comprehensive than (/() Ante, p. 204. (h) Post, p. 210, et seq. (i) Ante, p. 203. BILLS OF SALE. 207 its usual signification in the law ; more comprehensive, because the term is made to embrace fixtures — less comprehensive because it is denied to shares in government securities and joint-istock companies, to choses in action and to certain stock or produce upon any farm or lands (l). The chattels contem- plated by the Act are confined to goods capable of present delivery and removal ; thus, growing crops are not within section 7, yet an assignment of standing wheat which the assignee is to cut and carry away at any time he may require, is within the statute, as the intention is apparent to pass the immediate property (m). A separate assignment of fixtures requires registration (n), but not a mortgage of freeholds or leaseholds with fixtures (o) ; such a mortgage passes all fixtures which are removable by the tenant, even those subsequently added, unless expressly excepted. Thus, where the lessee of a public-house deposited the lease thereof by way of equitable mortgage, together with a memorandum stating t*hat the deposit was made to secure a loan of £800, and any money that might become due to the depositee for goods sold, and for the expense of " insuring the premises and fixtures and fittings therein" from fire, and the memorandum also contained an undertaking to execute a legal mortgage when required, it was held that all fixtures and fittings attached to the premises passed by such equitable mortgage, that the same did not require registration, and that therefore the title of the equitable mortgagee prevailed over that of the grantee of a bill of sale, to whom the fixtures had been subsequently assigned by the mortgagor (p). But where' the fixtures are kept distinct from the lands, although they are assigned by the same instrument, they are within the Bills of Sale Act and registration is necessary ; hence, where the lease of a ship-building yard and (l) S. 7, 17 & 18 Vict. c. 36. ip) Meux v. Jacobs, L. K. 7 H. L. (to) Brantom v. Griffits, L. R. 2 C. 481 ; In re S. J. Eslick ; Ex parte P. D. 212, 349. PhUlipan, L. K. 4 Ch. D. 496 ; Civil (n) Mather v. Frazer, 2 K. & J. 536. Service Building Society v. Mahony (o) Waterfall v. Penistone, 6 El. & et id., I. E. 10 C. L. 363 ; In re Daw- BI. 876. son, Tate & Co., L R. 2 Eq. 218. 208 FUNDED SECURITIKS OR SECURITIES ON PROPERTY. trade fixtures therein were assigned to hold the leasehold for the residue of the term granted by the lease, and to hold the trade fixtures absolutely, and subsequently the lease and assign- ment were deposited by the assignee with his brokers as security for advances, without memorandum of charge, it was decided that the assignee's trustee in bankruptcy was entitled to the fixtures, as against the brokers (q). The true test whether a mortgage deed of a building and fixtures requires registration as respects the fixtures is, whether it gives power to the mortgagee to sell or take possession of the fixtures separately from the building (r). With regard to the nature of the fixtures that pass by a mortgage of the land to which they are attached, it may be stated that there is no relationship in which chattels are so much identified with the premises wherewith they are connected as in the relationship of mortgagor and mortgagee (s), so that a person with a limited interest in land may have a right to remove fixtures as against the freeholder where a mortgagor has no such right as against a mortgagee (t). Thus, machinery annexed to the floor, ceilings, and sides of a building in a quasi permanent manner by bolts and screws, passes by an equitable mortgage of the building, although the object of annexation was merely to steady the machines when in use, and although they were removable without injury to them or to the freehold, and were in the nature of trade fixtures, which would as between landlord and tenant belong to the tenant (u). So, trade fixtures annexed to a freehold for the more convenient using of the premises, and not to improve the inheritance, pass to the mortgagee of the freehold (x), as does also a portable engine (q) In re Trethowan ; Ex parte L. R. 9 Ch. 576 ; Ex parte Brown ; In Tweedy, L. E. 5 Ch. D. 559 ; In re E. re Reed, 9 Ch. D. 389. Eslick ; Ex parte Alexander, L. R. 4 (s) Ante, p. 172. Ch. D. 503 ; Ex pwrte Daglish ; In re (t) Climie v. Wood, L. E. 4 Ex. 328. Wilde, L. E. 8 Ch. 1072 ; Begbie o. («) Longbottom v. Berry, L. E. 5 Q. Fenwiok, L. E. 8 Ch. 1075 n. ; Hawtry B. 123. V. Butlin, L. E. 8 Q. B. 290. (x) Climie v. Wood, sum-d. (r) Ex parte Barclay ; In re Joyce, BILLS OF SALE. 209 and boiler bolted to a wooden frame work embedded in mortar laid upon a brick foundation {y), and where a mill passes under an equitable mortgage anything which belongs to the machine as part of it passes as fixtures {z). Under the Bills of Sale Act, 1878, the meaning attributed to the expression "personal chattels" is the same as that defined by the earlier statute, except in the two important cases of growing crops and fixtures. In order to show the changes that have been effected, we must first observe that fixtures are distinguished into three classes, viz. : — 1. " Trade macliinery." 2. Machinery used in or attached to any " factory or workshop," exclusive of trade machinery. 3. All other fixtures ; which last, for the sake of conciseness, we shall call general fixtures. (A). Let us begin with growing crops and general fixtures ; these two classes of personal chattels seem to be put on a similar footing diflFering somewhat from that which either at present occupies by virtue of the 17 & 18 Vict, as interpreted by judicial decisions. Growing crops, we have seen, are or are not within the statute now in force according to the intention that an assignment of such crops shall or shall not pass the immediate property therein (a) ; fixtures are or are not within the statute according as they are assigned separately from or along with the land to which they are attached (6), and to con- stitute a separate assignment it is not necessary that the fixtures should be assigned by a separate instrument, for if land and fixtures pass by the same instrument, and the two are kept distinct, the fixtures are held to be separately assigned, the test of such separate assignment being the assignee's power to sell or take possession of the fixtures separately from the land (c). The efifect of the Act of 1878 on this point, is to confine the expression "personal chattels'' to growing crops (y) Gross v. Barnes, 46 L. J. Q. B. ante, p. 208. D. 479 ; Civ. SerT. Build. Soc. v. Ma- (c) Ex parte Barclay ; In re Joyce, hony, Ir. R. 10 C. L. 363. ante, p. 208 ; Ex parte Brown ; In re (z) Ex pane Lloyd's Banking Co. ; Beed, L. K. 9 Ch. D. 393. S. 7, 41 & In re Richard, L. R. 4 Ch. 430. 42 Vict. c. 31, abolishes this rule even (a) Brantom v. Griffits, ante, p. 207. as to bills of sale executed before 1S79. (i) Ex parte Daglish ; In re Wilde, 210 FUNDED SECURITIES OR SECURITIES ON PROPERTY. and general fixtures assigned or charged, and that by a sepai'ate instrument separately from any interest in the land to or on which they are affixed or grown (d). To growing crops and general fixtures assigned otherwise than as so described, the expression personal chattels does not apply (d). (B). "Trade machinery," as defined by the Act, is in all cases to be deemed personal chattels, and any mode of disposition of trade machinery by the owner thereof, which would be a bill of sale as to any other personal chattels, is to be deemed a bill of sale (e). The change here introduced is plain enough; a mortgage of land and fixtui-es, comprising " trade machinery," will in future be a bill of sale as to such trade machinery, and as such require registration ; thus, the principle so recently affirmed in Meux v. Jacobs, and adopted by the statute itself in the case of growing crops and general fixtures, that an assignment of land and fixtures without more does not require registration, is, as to trade machinery, over-ruled (/). " Trade machinery," means the machinery used in or attached to any factory or workshop, exclusive (1) of the fixed motive powers, (2) of the fixed power machinery, (3) and of the pipes for steam, gas, and water in the factory or workshop ; " factory or workshop," means any premises on which any manual labour is exercised by way of trade, or for purposes of gain, in or incidental (1) to the making any article or part of an article, (2) to the altering, repairing, ornamenting, finishing of any article, (3) to the adapting for sale any article (g). It is obvious that amongst the articles to which the term trade machinery is denied are enumerated just those things which one would say were unequivocally designated thereby ; hence, the difficulty of showing the application of the new provision. There is no definition of the word machinery, which we regard as a serious omission, inasmuch as the phrase is in common parlance highly ambiguous ; thus, some people refuse to give (d) S. i, 7, 41 & 42 Viot. c. 31. (/) Ante, p. 207. (() Ibid., S.S. 4, 5. (ff) S. 5, 41 & 42 Vict. c. 31. BILLS OF SALE. 211 the name of machinery to anything which is not worked or set in motion by the inanimate forces of nature, such as water or steam ; others do not regard the source of power, but look only to the complexity of a contrivance, and designate as machinery any combination of levers, pulleys, or other of the mechanical powers; whilst others again assign as many different meanings as there are technical senses in which the phrase machinery is employed in different trades. Whatever be the true interpretation of " machinery,'' no machinery can be trade machinery which is not used in or attached to a factory or workshop as above defined ; we interpret the definition to exclude from "trade macliinery'' all machinery which is worked by the owner in person, and produces merely for his own actual use or consumption, or which is used in storing or otherwise passively dealing with an article, not thereby pre- paring it for sale. Thus, the machinery used in a brewery or distillery will or will not be trade machinery according as the produce is made the subject of business profit or is devoted to the producer's own wants, whilst the fittings or fixtures of a shop, whether wholesale or retail, which fairly answer the description of machinery will or will not be trade machinery according as their employment does or does not result in the production of an article for gain, or its preparation for sale. The definition, that factory or workshop means any premises on which any manual labour is exercised by way of trade, or for purposes of gain, in or incidental to the purposes specified is open to a variety of explanations, the ambiguity arising from the difiiculty of determining to what subject the words " by way of trade or for purposes of gain" are to be referred. The reference may be — (1) to the labour simply ; (2) to the product of the labour simply ; (3) to both labour and product ; hence, factory or workshop may mean — 1. Any premises where paid manual labour is exercised in or incidental to the purposes specified, whether the results of such labour are or are not traded with or made the subject of gain ; e.g., a brewery, the produce of which, though solely devoted to the proprietor's p2 212 FUNDED SECURITIES OR SECURITIES ON PROPERTY. own wants, is raised by paid labour. 2. Any premises where manual labour, whether paid or not, is exercised in or incidental to the purposes specified, provided the results of such labour are traded with or made the subject of gain; e.g., a brewery, the produce of which is solely raised by the proprietor, and by him traded with or made the subject of gain. 3. Any premises where paid manual labour is exercised in or incidental to the purposes specified, provided the results of such labour are traded with or made the subject of gain ; e.g., a brewery, the produce of which is raised by paid labour, and traded with or made the subject of gain. It is, perhaps, this third significa- tion which best satisfies the language and aim of the BiUs of Sale Act ; but, unfortunately, both it and the second of the above significations involve an ambiguity of their own, viz., whether it is necessary that the products of the labour in question be themselves made the subject of trade or gain by direct disposition, or whether it is sufficient that they are used as instruments for the purposes of trade or gain without any disposition. Take the case of a railway or steam ship company which supplies its own rolling stock; are the premises on which such stock only is manufactured within the meaning of factory or workshop ? or, is it necessary that the manufacture should extend to other stock intended for sale or other transfer by the manufacturers ? Without pausing further on this subject, let us next turn to the remaining of the three classes into which fixtures are distinguished, viz., machinery used in or attached to any factory or workshop, exclusive of trade machinery [h). (C). This class of fixtures includes three diflerent denomina- tions of machinery : — 1st. Fixed motive powers, such as water-wheels and steam- engines, and the steam boilers, donkey engines, and other fixed appurtenances of the said motive powers ; 2nd. Fixed power machinery, such as the shafts, wheels, drums, and other fixed appurtenances, which transmit (h) Ante, p. 209. BILLS OF SALE. 213 the action of the motive powers to the other machinery- fixed and loose. 3rd. The pipes for steam, gas, and water in the factory or workshop (i). Machinery or effects falling within any of the above denomi- nations shall not be deemed personal chattels within the mean- ing of the new Act ; thus, a large and most important class of fixtures, the separate assignment of which requires registration under the law now existing, will, on and after the 1st January, 1879, absolutely cease to be within the substituted legislation. 3. What is sufficient to constitute apparent possession : — The object aimed at by the statutes of Elizabeth and by the Bills of Sale Acts is to prevent persons in insolvent circum- stances from fraudulently obtaining credit by keeping up a fictitious appearance through the possession, or apparent pos- session, of property, of which they have ceased to be or never were the true owners. By taking possession within twenty- one days (k) of the execution of a bill of sale, the grantee acquires, under 17 & 18 Vict. c. 36, a primd facie security of title against the world at large, and it becomes unnecessary to register his grant (l) ; otherwise, if the goods remain in the apparent possession of the grantor, as defined by s. 7, 17 & 18 Vict. c. 36 (m), the grantee's title is liable to be defeated by the grantor's trustee in bankruptcy, or execution creditors. To constitute apparent possession the occupation of the premises on which the personal chattels remain must be de facto, so that if the grantor resides elsewhere they are not in his apparent possession (n), and the possession which excuses registration must be actual physical possession taken by the holder of the bill of sale before default, nor can a holder who is a mere trespasser take constructive possession of part of the goods for (t) S. 6, 41 & 42 Vict. i;. 31. Ex parte Mutton ; In re Cole, L. K. 14 {k) S. 1, 17 & 18 Vict. c. 36. Eq. 178 ; Expm-te Harris ; In re PulUng, {I) Expmrte Northern Investment and 27 L. J. N. S. 501 ; 21 W. R. 44. Discount Co. ; In re Cai-lisle, 27 L. J. (m) Ante, p. 201. N, S. 520 ; Brignall v. Cohen, 21 W. R. (j») Robinson ivBriggs, L. R. 6 Ex. 1. 25 ; Gough v. Everard, 32 L. J. Ex. 210 ; 214 FUNDED SECURITIES OR SECURITIES ON PROPERTY. the whole (o). Goods bailed are in the possession of the bailor, for the purposes of the Bills of Sale Act (p), but goods in a house where a business is carried on, and where the grantor of a bill of sale comprising the goods is allowed to live and have the use of the same as part of his salary — the grantee living elsewhere— are not in the apparent possession of the grantor within the Act (q) ; the same is true of goods (though still in the house of the grantor) of which possession is taken by the grantee, and which are advertised for sale as the goods of the grantor sold under a bill of sale (r). It is expressly pro- vided that apparent possession shall not be avoided by mere formal possession (s) ; hence, putting a man in possession with the former owner does not take the goods out of the apparent possession of the latter, and placards that the furniture is to be sold, not showing that the sale was under a bill of sale, do not cure the defect (t) ; so, where two men sent to take pos- session remained in the house where the goods were, allowing the debtor the use of the same as before, it was held that the goods continued in the debtor's apparent possession (u). The forcible removal of goods by the grantee of a bill of sale who has taken possession before the grantor's trustee in bankruptcy whilst the latter is in possession is unjustifiable (x). The order and disposition clause under the Bankruptcy Act must be distinguished from the apparent possession clause under the Bills of Sale Act ; under the former the consent of the true owner is necessary to the goods being in the order and dispo- sition of a third person ; under the latter, no such consent is necessary to the goods being in the apparent possession of the grantor of a bill of sale. Accordingly, an unsuccessful demand (o) Ex parte Fletcher ; In re Henley, (s) S. 7, 17 &, 18 Vict. c. 36. L. E.. 5 Ch. D. 809. (i) Ex parte Tuema; In re Hendesrson, (p) AncoDa v. Rogers, L. R. 1 Ex. L. R. 6. Ch. 626; Ex parte Mutton, nU D. 185 ; Ex parte Wood ; In re News- supra. ham, W. N. (1879) 3. («) Ex parte Jay ; In re Blenkhom, (?) Piokard v. Marriage, L. R. 1 Ex. L. E. 9 Ch. 697 ; Ex parte Hooman; D. 36^. In re Vining L. R. 10 Eq. 63. (r) Emmanuel v. Bridger, L. R. 9 (x) In re Fells ; Ex parte Andrews, Q. B. 286; In re Bain bridge ; Ex parte L. E. 4 Ch. D. 509. Fletcher, L. R. 8 Ch. D. 218. BILLS OP SALE. 215 for possession by the grantee of an unregistered bill of sale, ■who is entitled to the possession, does not take the goods granted out of the apparent possession of the grantor, nor is the case different if the demand be to a bailee of the goods {y). The question of apparent possession cannot arise, unless a bill of sale has been actually executed, but the question of order and disposition may arise, whether or not an instrument amount to a bill of sale; thus, in an action to enforce an agreement by B. to give a bill of sale of his furniture and effects, A. obtained the appointment of a receiver who entered into possession on the 16 th March, 1876, and served the cus- tomers ; during the night B. absconded, and next day, 17th March, filed a liquidation petition under which a receiver in bankruptcy was appointed, and the two receivers then remained in joint possession ; imder these circumstances it was held that the case was not within the Bills of Sale Act ; that the pos- session of A's. receiver had taken the goods out of the order and disposition of B. at the time of his bankrupcy, and that A's. title consequently prevailed (z). When the goods com- prised in a bin of sale were in two separate houses, it was held that possession taken of the goods in one of the houses before the act of bankruptcy, took the goods in both houses out of the bankrupt's order and disposition (a). Section 7 does not apply to choses in action ; hence a bill of sale of a partner's share need not be registered (6). In the Bills of Sale Act, 1878, apparent possession is defined in precisely the same words as in the Act of 1854 ; but the time allowed for registration is cut down from twenty-one to seven days from the execution of the bill of sale (c) ; and due registration is to have the effect of taking the goods comprised in the bill of sale out of the grantor's possession, order, or (y) Aucona v. Eogers, L. E. 1 Ex. D. Alexander, L. R. 4 Oh. D. 496. 285. (J) In 're Bainbridge ; Ex •parte (z) Taylor v. Eckersley, L. E. 5 Ch. Fletcher, L. R. 8 Oh. D. 218. D. 740. (c) S. 8, 41 & 42 Vict. c. 31. (o) In re S. J. EsUct ; Ex pwrte 216 FUNDED SECURITIES OR SECURITIES ON PROPERTY. disposition within the meaning of the Bankruptcy Act, 1869 (d). By this provision the necessity for distinguishing apparent pos- session from order and disposition will be obviated wherever there is a bill of sale duly registered, but in no other case ; thus, on the bankruptcy of the grantor of an unregistered bill of sale within seven days from its execution, the question will arise whether the goods gi-anted were in the order and disposi- tion of the bankrupt, but not whether they were in his apparent possession, inasmuch as the grantee has until the expiration of the seven days for due registration. 4. What description in the bill of sale and accompanying affidavits satisfies the prescribed requirements. — The Bills of Sale Act, 1854, requires the filing not only of the bill of sale, or a copy thereof (which latter will be available, though the original be destroyed), but also of an alEdavifc of the time of such bill of sale being made or given, and a description of the occupation and residence of the parties thereto, of the person filing the same, and of each and every attesting witness (e). The names of the parties though necessary to be entered on the register need not strictly be stated in the bill of sale or affida- vit (/). What will answer to a description of the occupation and residence of the parties is a difficult question. As to the occupation: — " If the party has an occupation it must be correctly described ; if he has none, it does not follow that the description of 'gentleman' is proper, but if such an addition is in common par- lance not so far inapplicable to the rank of society in which he moves as to mislead, the bill of sale wiU not be avoided if it be employed" (g). Thus, a person who had been a proctor's clerk six years before and had since lived on an allowance from his mother, but had sometimes collected debts and written letters for other persons, and had drawn four bills of sale, without, however, having any regular occupation, was held to be cor- [d) Ibid., a. 20. L. K. 10 Oh. D. 398; Gardner v. Shaw, (e) S. 1, 17 & 18 Vict. c. 36 ; b. 7, 29 24 L. T. N. S. 319; 19 Vf. K. 763. & 30 Vict. c. 96. ig) Smith v. Chase, L. K. 1 C. P. D. (/) Ex parte WKattie ; In re Wood, 60, ;)C!- Lindley, J. BILLS OP SALE. 217 rectly described as a "gentleman (h);" but the description of soli- citor's clerk as such in the bill of sale, but as " gentleman " in the alBdavit, without reference to the bill of sale, is insufficient (i) ; so, the grantee of a bill of sale, who was the lessee and manager of a theatre, was held to be wrongly described simply as " esquire " (fc) ; so a grantee, who was clerk in the accountant's department at a railway station, but in his leisure time occa- sionally balanced tradesmen's books, is wrongly described in the affidavit as an accountant (l) ; but where an accountant's clerk, who was occasionallj'^ allowed to do business on his own account, and was known to the neighbours by the name of an accountant, and received letters addressed to him under that designation, in a town numbering 40,000 inhabitants, it was decided that under the circumstances the following was a sufficient description, " I reside at Henley, in the city of Staf- ford, and am an accountant " (m). In this last instance an extraordinary latitude was shown, so that the decision cannot be quoted as an authority, except in a precisely analogous case (n). It shoidd be observed that the grantee's residence and occupation should be described as they exist at the time of the grant, not as they exist at the time of the filing (o). As to the true residence of the parties : — An inconsistency between the number of the street given in the bill of sale and in the affidavit is fatal (p) ; but it is sufficient if the deponent in the affidavit describe the grantor's occupation and residence " to the best of his belief," provided such description be true in fact ; and where a company established for trading pur- poses gives a bill of sale, the name of the company and its principal office is a sufficient description (q). (A) Ibid. Deposit Bank, Bv/prd,. (i) Brodrick v. Scale, L. K. 6 C. P. (o) London and Westminster Loan 98. Co. V. Chace, 31 L. J. C. P. 314. (k) Ex pa/He 'Hooman ; In re Yining, {%>) Murray v. Mackensie, L. E. 10 L. E. 10 Eq. 63. C. P. 625 ; £x paHe M'Hattie ; In re (I) Iiarchiu v. The North Western Wood, $uprd ; Blount v. Harris 27 W Deposit Bank, L. E. 10 Ex. 64. E. 202. ' (m) Briggs v. Boss, L. E. 3 Q. B. 268. (g) Roe v. Bradshaw, L. E. 1 Ex. (n) Larchin v. The North Western 106 ; Shears v. Jacob, L. E. 1 C. P. 513. 218 FUNDED SECURITIES OB SECURITIES ON PROPERTY. Although only one witness is req^uired to attest a bill of sale before it can be registered (r), yet if there be several attesting witnesses the residence and occupation of every one of them must be truly described ; hence a description of one of two attesting witnesses is insufficient (s). The description in the affidavit may be supplemented by that in the annexed copy of the bill of sale (t), and a merely clerical error in the affidavit may be amended after registration (w.); a registered biU or affidavit erroneous in a material point must not be taken off the file, but a new bill and affidavit should be filed with an indorsement referring to the previous bill or affidavit, and declaring that the subsequent registration was to rectify the error that had arisen {x). Under 14 & 15 Vict. c. 99, an of&ce copy of a registered bill and affidavit is admissible in evidence (i/), but the production of a bill of sale and the fol- lowing certificate, stamped with the seal of the Queen's Bench Division — " Johnson and Mason. A document purporting to be a copy bill of sale, and dated the 8th day of April, 1875, indorsed with the above names, was registered at the judgment office of the Court of Queen's Bench, on the 15th day of April, 1875," — is no evidence that an affidavit satisfying all the requirements of the Act had been filed with the biU of sale {z). The BiUs of Sale Act, 1 878, requires the filing of a copy biU of sale and accompanying affidavit containing the same descriptions as those prescribed by the Act of 1854, except that the affidavit must also depose to the due execution and attestation of the bill of sale (a). The attestation must, as we have seen, be by a solicitor of the Supreme Court (b) ; the affidavit may be sworn before a master of any division of the High Court of Justice, or before a commissioner for taking affidavits (r) S. 1, 17 & 18 Vict. c. 36. (x) In re O'Brien, 10 Jr. C. L. E. (») Kckard v. Marriage, li. E. 1 Ex. D. Ap. xxxiu. 364 ; Deffel r.WHte, L. B. 2 C. P. 144. (y) Grindells. Bendon, 28 L. J. C. P. (t) Jones V. Harris, L. E. 7 Q. B. 157. 333 ; Sutton v. Bath, 27 L. J. Ex. 388. (a) Hollingworth v. WHte, 16 W. (z) Maeon v. Wood, L. E. 1 C. P. D. E. 619; 6L.T.N. S. 604; Elliott v. 63; Emmott i;. Alarchant, L. E. 3 Q. B. Freeman, 7 L T. N. S. 715 ; Lamb v. D. 555. Bruen, 45 L. J. Ex. D. 538 ; Corbett v. (a) S. 10, (2), 41 & 42 Vict. o. 31. Eowe, 25 W. E. 59. (6) Zbid. (1). BILLS OF SALE. 219 in the Supreme Court (c). It is not quite clear -whether registration may on and after 1st January, 1879, be ever effected by filing the original bill of sale itself ; or whether the filing of a copy is in all cases absolutely indispensable. Under section 10 the filing of the original is evidently inadmissible ; section 12, however, contemplates that either the original or a copy may be filed at option, as was the case under the 17 & 1 8 Vict. 0. 36 ; of course a copy would naturally be filed for the sake of convenience, but it is only proper to point out that the convenient will apparently in future be the necessary mode, ajid that particular care should be taken not to confound the original with the copy bill of sale. 5. The general effect of the Bills of Sales Acts. — ^Eegistra- tion under the 17 & 18 Vict. c. 36, and 29 & 30 Vict. c. 96 (d), confers no new security, so that a registered bill of sale may be defeated by the grantor's creditors, landlord, or trustee in bankruptcy, whenever an unregistered bill could be so de- feated (e). Nor does such registration confer any original priority ; thus, the grantee of an unregistered bUl of sale will have precedence over the grantee of a subsequent registered bill comprising the same goods (/), and where there are two registered bills of the same goods, the grantee of the second bin does not acquire any priority by being the first to take possession (gr). An execution, however, or an adjudication of bankruptcy against the grantor of a bill of sale, entirely dis- places an unregistered bill, and on such displacement the grantee of a subsequent registered bill of the same property can hold against the execution creditors (h), or the trustee in bankruptcy (i) ; the grantee of a first bill of sale, which is un- (c) Ibid., s. 17. (e) Stansfeld v. Cubbitt, 27 L. J. fib. (d) Scotland and Ireland are expressly 266 ; Badger v. Sbaw, 29 L. J. Q. B. 73. excluded from the operation of 17 & 18 (/) Maugham v. Sharpe, 17 C. B.N. Vict. 0. 36, 29 & 30 Vict. c. 96, and S. 443, 456. 41 & 42 Vict. c. 31, but the 17 & 18 Vict. (g) Ex parte Alien ; Ex pa/rte Page ; c. 55, supplies to Ireland what the 17 & In re Middleton, L. E. 11 Eq. 209. 18 Vict. c. 36 had previously enacted for (h) Richards i;. James.L. R. 2 Q. B. 285. England. Coote v. Jeeks, L. R. 13 Eq. (i) Ex parte Leman ; In re Barraud, 597. L. E. 4 Ch. D. 238 ; 3 Ch. D. 324. 220 FUNDED SECURITIES OR SECURITIES ON PROPERTY. registered, cannot, however, set up the registered title of the grantee of a second bill of sale against the trustee in bank- ruptcy (k). A bill of sale which may be defeated for want of registration, nevertheless passes the property in the goods it comprises untQ proceedings are taken against the grantor, either in bankruptcy or by the levy of an execution (I). Notice to an execution creditor at the time his debt was con- tracted that the debtor had given a bill of sale, does not prevent him from subsequently availing himself of the objection that the biU is not registered (m). An assignment of a bill of sale does not affect the obligation to renew the registration every five years ; hence, if a grantee before the period for renewal assign his interest to a third person, the assignee after the time for renewal has passed, and on his default to renew, will have no title as against an execution creditor of the grantor (n). To avoid the publicity of registration, a bill of sale is some- times renewed once in every twenty-one days ; such renewed bill is valid as against the grantor's execution creditors, though no new consideration pass on each renewal (o), but is invalid against his trustee in bankruptcy, or liquidation, unless a fresh advance be each time made (jp), and if the grantor's whole property be comprised in the original bill of sale, such renewal without a fresh advance is an act of bankruptcy (q). Where a bin of sale was renewed in pursuance of an agreement that neither the original bUl, nor any which might be successively substituted, should be registered unless the grantor got into difficulties ; and the renewed bill was registered, the original bill remaining unregistered and uncancelled in the hands of the grantee, it was held that the substitution of the second for the first bill amounted to a conveyance from the grantee to (J) Nicholson v. Cooper, 27 L. J. Ex. (o) Eamsden v. liupton, L. E. 9 Q. 393. B. 17. (?) Eeg. V. Creese, L. K. 2 C. C. 105. (p) Ex parte Cohen ; Jn re Sparke, (m) Edwards v. Edwards, L. K. 2 Ch. L. R. 7 Ch. 20. D. 291. {q) Ex parte Stevens ; In re Stevens, (m) Karet v. Kosher Meat Supply L. E. 20 Eq. 786 ; Ex parte Furber ; Association, L. E. 2 Q. B. D. 361. In re Pellew, L. E. 6 Ch. T>. 181. WLr.S OF 8 ALU. 221 the grantor, and a reconveyance from the grantor to the grantee, ho that the property passed under the second bill to the f^rantuo, which, being registered before the expiration of twenty-one days frdui its execution, prevailed against an execution creditor (r). Successive renewals to defeat the operation of the bankruptcy liiw are utterly invalid (s), yet a substituted bill of sale may stand good against the grantor's trustee in bankruptcy where the original bill would have been defeated for want of registration, but in such case there must be a consideration for the substituted bill, or at least some- thing more than the substitution of a subsequent for a prior bill comprising the same property ; thus, where a second bill of sale was given in pursuance of an agreement not to register the first bill on the debtor's promise to give another bill when so re(iuii'ed by the creditor, and such second bill was registered and possession taken by the grantee two months before the grantor's bankruptcy, it was held that the grantee's title could not be impeached by the grantor's trustee in bankruptcy (f). The duties of the officer in filing an affidavit are purely ministerial (u). By the Bills of Sale Act, 1878, rules very different to those we have just been considering are laid down. Priority of registration is to confer priority of title (v), and due registra- tion, as we have already pointed out, is to defeat the order and disposition clause in the Bankruptcy Act (x). Thus, as against the first registered grantee of a bill of sale, a prior unregistered grantee cannot prevail, even though the seven days from the execution of his bill of sale have not elapsed. Again, the evasion of registration by successive renewals of a bill of sale is for the future done away with, for it is enacted that a subse- quent bill of sale executed within, or on the expiration of seven days after the execution of a prior unregistered bill of sale, (r) Ramaden v. Lupton, L. K. 9 Q. L. .T. Ch. 266. B. 17 ; Smalo v. Burr, L. R. 8 C. P. («) In re Jaokson ; Ex parte Hall, L. 64. K. 4 Ch. T>. 682. (s) li.r j)it;*Furbor; Inrc Pellaw, ubi («) Needhnm w. Johnson, 8 B.&S. 190, .iiiprit ; lir parte (Johen ; In re Sparko, (v) S. 10, 41 & 42 Vict. o. 31. I,. R. " Oh. 20 ; Stanafeld i: Oubbitt, 27 (x) Ihld., a. 20 ; aHl^■, pji. 215, 216. 222 FUNDED SECURITIES Oil SECURITIES ON PROPERTY. and comprising all or any part of the personal chattels com- prised in such prior bill of sale, when given as a security for the same debt as is secured by the prior bill of sale, or for any part of such debt, shall, to the extent to which it is such security, and so far as respects the personal chattels, or part thereof comprised in the prior bill, b'e absolutely void, unless it is pi'oved to the satisfaction of the Court having cognizance of the case that the subsequent bill of sale was bond fide given for the purpose of correcting some material error in the prior bill of sale, and not for the purpose of evading the Act {y). By this enactment successive renewals of an unregistered bill of sale are put on the same footing as regards the grantor's other grantees, his trustee in bankruptcy, or his execution creditors ; in all such cases, so far as the same debt is secured, the substituted bill of sale is absolutely void. The Act of 1854 did not require the consideration for which a bill of sale was given to be stated therein, but the Act of 1878 requires such statement, otherwise the bill of sale will be fraudulent and void in the same manner as if it were not registered within seven days from its execution (z). With re- gard to the computation of such seven days, it is provided that when the time for registering a bill of sale expires on a Sunday, or other day on which the registrar's office is closed, the registration shall be valid if made on the next following day on which the office is open (a). Provision is also made for rectification of the register, when through accident or inad- vertence there has been an omission to register a bill of sale or affidavit of renewal within the time or in the manner pre- scribed by the Act (b). Finally, rules for the purposes of the Act may be made by the like persons and in the like manner in which rules may be made under and for the purposes of the Supreme Court of Judicature Acts, 1873 — 1875 (c). {y) Ibid., s. 9. (6) Ibid., a. 14. (z) Ibid., s. 8. (c) Ibid., a. 21 ; 36 & 37 Vict. c. 66 ; (a) Ibid., s. 22. 38 & 39 Vict. c. 77. 223 CHAPTER XXIII. EQUITABLE MORTGAGES. By an equitable mortgage is sometimes understood any mortgage which does not vest the legal ownership of property in the mortgagee, and which formerly would only be recog- nized and enforced in a Court of Equity. We, however, use the term in a more restricted sense, and mean by an equitable mortgage a mortgage by deposit of title deeds or documents. By such a' deposit the mortgagor contracts that his interest shall be liable to the debt, and that he will make such con- veyance or assurance as may be necessary to vest that interest in the mortgagee (a). In general, all property, whether real or personal, in possession or expectancy (h), is susceptible of being equitably mortgaged by giving the mortgagee posses- sion of the documents that establish title to such property as security for the payment of a given sum of money, or for the performance of any other engagement. Thus, if a conveyance of real estate, a policy of insurance, or a certi- ficate of shares in a company be deposited to secure a past, present, or future advance, an equitable mortgage will be thereby created on such real estate, policy, or shares, re- spectively. So, the deposit of the registered mortgage of a ship will well avail as an equitable mortgage (c) ; and, gener- ally, even a delivery of deeds for the purpose of preparing a (a) Pryce v. Bury, 2 Drew. 42, Per hall, L. K. 7 Eq. 286. Kindersley. V. C. (c) Lacon v. Liffen, i Gif. 75 ; Ex (6) Martin v. London & Dann. Rly. pwHe Hodgkin ; In re Softley, Ij. R. 20 Co., L. R. 1 Ch. 501 ; Forhall v. For- Eq. 746. 224 FUNDED SECURITIES OR SECURITIES ON PROPERTY. legal, will constitute a valid equitable, moitgage (cf). When the title to land is registered under the Land Transfer Act, an equitable mortgage on such land is effected by a deposit of the land certificate, or oflBce copy, of the lease, according as the property in question is freehold or leasehold (e). A certificate of shares is merely a solemn affirmation under the seal of a company that a certain amount of stock stands in the name of the individual mentioned in the certificate. It is the duty of a person receiving, as equitable mortgagee of railway stock, certificates of shares therein, to inquire what is the real posi- tion of the person pretending to mortgage, for, if such person has only the legal title by having the certificates in his pos- session, but is, in truth, merely the trustee for another, the equitable mortgagee will be unable to enforce his claim in opposition to the original cestwi que trust. The onus probandi that a pre-existing title is taken away lies on the person seek- ing to affect such title ; nor can the same be taken away by a mere breach of trust which does not pass the legal estate or interest (/). An equitable mortgage by deposit is not within the Statute of Frauds, as it is held to be an executed agreement ; hence, no writing or other formality need accompany the deposit (g). There may, indeed, be an express verbal or written contract as well as the deposit, in which case the transaction will be governed by the conditions agreed upon (h), the rule being that a deposit of title deeds as security for a debt without more creates a charge upon the property, but where accompanied by a written document the terms of that document must be re- ferred to in order to ascertain the exact nature of the charge (i). And where there is such accompanying document or memoran- dum, but not otherwise (/c), an equitable mortgage of land by (d) White & Tudor's Lead. Cas. I. (g) Russell v. Russell, 1 Bro. Ch. 269. 733, 734, 5tli ed. ; Tebb o. Hodge, L. (A) Ex parte Combe, 17 Ves. 369. E. 5 C. P. 73. (j) Shaw v. Foster, L. E. 5 H. L. (e) S. 81, 38 & 39 Vict, o. 87. 321, per Cairns, L. C. (/) Shropshire Union Ry. & Canal (i) Sumpterj;. Cooper,2 B. & Ad. 223; Co. V. The Queen, L. R. 7 H. L. 496. In re Driscoll's'Estate, Ir. R. 1 Eq. 285, EQUITABLE MORTGAGES. 225 deposit of title deeds is within the Registry Acts (I) ; so, a memorandum of the deposit of deeds to secure an annuity- charged on land must be registered in the Common Pleas Division for the charge to avail against purchasers, mortgagees, or creditors (m). On the other hand, a company may effect mortgages by deposit without the formalities required by the articles of association for the execution of mortgage deeds (n) ; but such mortgages will not be upheld in favour of an officer, e. g., the company's solicitor, whose duty it is to see the pre- scribed formalities carried out(o), for which purpose the com- pany's bankers are not deemed officers (p). To create an equit- able mortgage it is not necessary to deposit all the material title deeds (q) ; it is sufficient if the material evidences of title are deposited with the intention of creating a charge (r), but the charge will only extend to the property comprised in the documents deposited, so that a deposit of deeds relating to part only of an estate, with a representation that they relate to the whole, wiR not create an equitable mortgage over anything beyond the part in question (s). Even a direction by a person whose title deeds are in the possession of a third party, that such party hand them over to another, will constitute an equitable mortgage (t), whilst a letter may either explain an actual deposit or create without deposit a valid equitable security as a declaration of trust (u). Having explained the nature and form of an equitable mortgage, let us next consider the rights it confers. The first effect of the deposit is to give the depositee a lien on — that is, a power to retain the documents so long as his {I) Neve V. Pennell, 2 H. & M. 170. Co. L. K. 7 Ch. 289 ; In re Wynn As to registry under Bankers' Act (Ire- Hall Co. L. K. 10 Eq. 515 ; post, p. 276. land), see Copland v. Davies, L. E. 5 (p) In re Imperial Land Co. of Mar- H. L. 558. seilles, L. E. 10 Eq. 298. (m) 18 & 19 Vict. c. 15, s. 12. (?) Lacon v. Allen, 26 L. J. Ch. 18. (n) In rcGeneral Provident Assurance (r) Ibid. Co. ; ex parte National Bank, L. E. 14 («) Jones v. Williams, 24 Beav. 47. Eq. 597 ; In re Patent File Co. L. E. (t) Daw v. Terrell, 33 Beav. 218. 6 Ch. 83. («) Dixon v. Muokleston, L. E. 8 (o) In re Patent Bread Machinery Ch. 155. 226 FUNDED SECUEITIES OR SECURITIES ON PROPERTY. claim for which they are security remains undischarged. No such lien can be set up if either the transaction do not amount to an equitable mortgage, or if it be a conditional mortgage, and the mortgagee fails to perform the required condition. Thus, a creditor with whom a box full of title deeds and securities is deposited for safe custody, cannot retain the same for the debts due to him from the depositor (a;). So, where deeds were deposited with the following memorandum — " In consideration of your lending F. B., £1000 for seven days from this date, I deposit, &c.," and the depositees (bankers) did not place £1000 to credit of F. B., but during the next seven days allowed him by cheques drawn in the ordinary way to over- draw his account to an amount somewhat less than £1000, it was held that the depositees had no lien on the deeds, for that they had not fulfilled the condition (y). A hondjide equitable mortgagee without notice of a prior incumbrance, though post- poned in the realisation of his charge, cannot in general be compelled to relinquish his lien, and yield up the documents deposited. If indeed, in such a case the Court order a sale, the depositee may be ordered to produce, but not to dehver up, the documents (z), and the inability to order such delivery is a reason why the Court should not exercise its power under 15 & 16 Vict. c. 86, s. 48, of decreeing a sale instead of a fore- closure (a). But a depositee's lien cannot avail against a pur- chaser for valuable consideration without notice, for the right to the estate confers the right to possession of the muniments of title thereto (b). Where there are equitable mortgagees for value, who, through the fraud of the mortgagor's agent, are without notice of a prior mortgage, a decree for foreclosure by the first mortgagees will be directed, but there will be no order for delivery up of the title deeds by the second mortgagees (c). In {x) Leese v. Martin, L. R. 17 Bq. (a) Heath v. Crealock, L. R. 10 Oh. 224 ; post, pp. 356, 357. 22. (y) Barton v. Gray, L. R. 8 Ch. 932. (ft) Newton v. Newton, L. R. 4 Ch. (z) Thorpe v. Houldsworth, L. R. 7 143. Eq- 139. (c) Waldy v. Gray, L. R. 20 Eq. 238. EQUITABLE MORTGAGES. 227 illustration of an equitable mortgagee's lien may be mentioned a case, where a loan having been made to a building society without boiTowing powei-s, and secured by the promissory notes of the trustees, and by deposit by them of mortgage deeds executed by members of the society, it was held, without decid- ing the right of the lender to enforce his security, that the official liquidator of the society was not entitled to deprive the lender of the documents deposited without payment of the money he advanced (d). An equitable mortgage with memo- randum of charge by a devisee is an alienation which po^o tanto prevents a ci'editor from subsequently obtaining a charge on the devised estate as assets under 3 & -i Wm. IV. c. 104 (e). An equitable mortgage is primd facie a security only for the sum due at the time of the deposit, but parol evidence is ad- missible to show that the deposit was also intended to secure future advances (/). By the custom of trade a lien on docu- ments deposited to secure a particular debt may be extended to cover the genei"al balance of account (g). Thus, as between banker and customer, whatever number of accounts are kept in the books, the whole is really but one account, and it is not open to the customer in tlie absence of some special contract to say that securities which he deposits ai-e only applicable to one account. Hence, where the O. bank kept a loan account, a discount account, and a general account with the A. bank, and entered advances which they received from the A. bank in the loan account, and deposited securities with the A. bank to meet the same, it was held that the A. bank might retain three bills of exchange given as collateral security to allow credit for a draft of £10,500 drawn by the 0. bank for the balance of the general account (A). So, where title deeds were deposited with a bank as '' collateral securities for bills under discount," a lien on the proceeds of sale of the property to which the deeds (d) In re Durham County Permanent (/) Exparie Whitbread, 19 Ves. 209. Investment Limd r. Building Society ; {g) In re Witt ; ex parte Shoebrook, Wilson's Case, L. R. 12 Eq. 521. L. R 2 Ch. D. 489 ; post, pp. 355—358. (e) British Mutual Investment Co. r. {h) In re European Bank ; Agra Smart, L. R. 10 Ch. 567. ' Bank Claim, L. E. 8 Ch. 41. Q 2 228 FUNDED SECUEITIES OR SECURITIES ON PROPERTY. related was allowed for the whole amount due to the depositor besides such bills (i). The general lien of bankers does not extend to documents deposited for safe custody, or other pur- pose, outside the relation of banker and customer (j), and it may in all cases be excluded by an express security (k). We have described an equitable mortgage as an executed agreement for a legal mortgage, and it may therefore be inferred that an equitable mortgagee may in the absence of a stipulation to the contrary call for such legal mortgage (I). That right may be enforced at any time, and thereupon title to possession of the documents deposited will depend on the nature of the mortgage (m). An equitable mortgage may, however, be directly realised without intervention of a legal mortgage ; a depositee may in the first instance apply to the Court for a foreclosure (n) or sale of the property, of which he holds the title deeds, but such foreclosure or sale cannot take place until default made in satisfying the claim secured (o). An equitable mortgagee, on bringing an action for foreclosure, is entitled to a declaration that the deposit operated as a mortgage, that in default of payment the mortgagor shall convey, that the mortgagor is a trustee of the legal estate for him, and to an order that the mortgagor do convey. Hence, a decree for foreclosure of an equitable mortgage is much more extensive than a decree for foreclosure of a legal mortgage ; and hence the dismissal of an action brought by the mortgagor for redemption of an equitable mortgage does not operate as a {{) In re General Provident Assurance Sporle v. Whayman, 20 Beav. 607 . Co. ; ex parte National Bank, L. R. 14 (») Where lands are equitably mort- Eq. 507. gaged by deposit of title deeds, tie {j) Brandao v. Barnett, 1 M. & Gr. proper remedy is foreclosure, not sale, 908 ; 12 CI. &E. 787 ; Leese v. Martin, L. except where there is an agreement for R. 17 Eq. 224 ; Re WiUiams, I. R. 3 a legal mortgage ; James v. James, Eq. 346. L. R. 16 Eq. 153 ; Backhouse v. Charl- {h) In re Leith's Estate ; Chambers ton, L. R. 8 Ch. D. 444 ; Waddell v. ,). Davidson, L. R. 1 P. C. 296. Toleman, L. R. 9 Ch. D. 212 ; York {I) Ante, p. 109 ; Grugeon v. Gerrard, Banking Co. v. Artley, W. N. (1879) 4 Y. & C. 119 ; Malone v. Geraghty, 1 68 ; it is just the reverse where the H. L. 0. 81 ; 3 D. & W. 246. subject mortgaged is a chattel personal ; (m) Qucere if mere deposit give right Carter v. Wake, L. E. 4 Ch. D. 605 ; to call for legal mortgage, Metcalfe v. Owen v. Braddell, I. R. 7 Eq. 368. Archbishop of York, 1 My. & C. 257 i (o) Yeatman u Reed, 36 L. J. Ch. 136. EQUITABLE MORTGAGES. 229 , decree for foreclosure, whilst such a dismissal (except for want of prosecution) in the case of -a legal mortgage does so operate (p). ' An equitable mortgagee is entitled to fixtures {q), and to the proceeds of the good-will of a business carried on on the premises to which the deeds deposited relate (r) ; and, on the other hand, the depositee of a lease cannot be compelled by the lessor to take a legal assignment thereof, and does not become hable for the rent and covenants, even though he take possession (s). The proceeds from the property comprised in an equitable mortgage are, in the first place, applicable to the discharge of the particular debt secured, any balance will go to satisfy the claims of subsequent incumbrancers, or, if there be no such incumbrancers and the proceeds have come to the hands of the first mortgagee, who has other debts giving a right of retainer, then in satisfaction of such debts, or, if there be no such debts, to the mortgagor or his representatives. Thus, .the depositees of a policy of insurance on the life of the depositor, having received the amount of the policy which more than covers the debt for which it was deposited, will not be allowed as against the general creditors of the deceased to retain the balance in discharge of his other liabilities, towards them (t) unless they possess an independent lien as executors' or other- wise {u). But, as against incumbrancers who have specific charges on the fund, no such retainer is admitted, and this leads us to make a few observations on the important subject of priority. We have on a former page (v) explained what is meant by tacking and by consolidation of mortgages, and we mentioned (p) Marshall v. Shrewsbury, L. K. 10 436 ; Stewart v. Gladstone, L. E. 10 Ch. 250. Ch.D. 626. (5) Meux u. Jaoohs, L. R. 7 H. L. (s) Moore v. Gregg, 2 Phil. 717. 481 ; Cullick v. Swindell, L. K. 3 Eq. (t) Talbot v. Frere, L. R. 9 Ch. D. 247 ; Ex pa/rte Tagart, 1 De G. 531 ; 568 ; In re Haseltoot's Estate ; Chaun- In re S. J. Esliek ; Ex parte PhiDipan, tier's Claim, L. R. 13 Eq. 327 disap- L. E. 4 Ch. D. 496. As to registration proved. under the Bills of Sale Act, 1 878, see (u) Richmond v. White, L. R. 10 Ch. ante, pp. 209 — 212. D. 727 ; jfn re Hodgson ; Hodgson v. («•) Chissum v. Dewes, 3 Russ. 29. Eox, L. R. 9 Ch. D. 673. See Levy i;. Walker, L. R. 10 Ch. D. (v) Ante, Tpp. 112—115. 230 FUNDED SECURITIES OE SECUEITIES ON PROPERTY. that the latter principle applies even where the several charges are purely equitable (w) ; hence, an original depositee or a depositee by assignment of different sets of documents deposited by the same person to secure different debts, cannot be com- pelled to part with any one set on payment of the particular debt thereby secured ; the mortgagee or his representative can- not insist on redeeming one without redeeming all charges (x). As the principle of tacking depends on the co-existence of a separate legal and equitable estate or interest in the same subject of property, it follows there can be no tacking where all the outstanding interests are equitable. Suppose the title deeds to an estate are made up into three several parcels, and the owner of the estate successively obtains advances by seve- rally depositing a parcel with A., with B., and with C, who have no notice of any incumbrance at the time of making their respec- tive loans, then it is held that the charges rank according to the order of time in which the deposits were made ; that is, A. has priority over B., and B. has priority over C, and this original precedence cannot be disturbed by assigning A.'s charge to C, or C.'s charge to A., for as between persons having merely equitable interests, and being equally free from all blame, he who is first in time is entitled to have his rights first satisfied (y). But mere priority in time, it has been said, is the last consideration to which the Court resorts in determining the claims of con- flicting parties (z) ; that element only has weight when the equities are in all other respects equal, so that a subsequent wiU be preferred to an antecedent incumbrancer, if the former has by his own diligence or by the negligence of the latter acquired a more meritorious position in the view of an equitable tribunal (a). Thus, where the purchaser of an unpaid-for estate deposited the title deeds, upon which the vendor had indorsed a receipt for the purchase-money, with a person who made an advance (w) Ante, p. 114. {z) Rioe v. Rice, 23 L. J. Ch. 289. (k) Ante, p. 113. (a) Ibid. ; Spenoer v. Clarke, h. E. (y) Roberts v. Croft, 24 Beav. 223. 9 Ch. D. 137. EQUITABLE MORTGAGES. 231 without notice of any incumbrance, it was held that the depositee's charge had priority over the vendor's lien for the unpaid price. So, where a solicitor to two mortgagees having without authority put up the mortgaged estate to auction, and professed to buy the same, and thereupon a conveyance to him under the mortgagee's powers of sale was prepared and exe- cuted by them, and receipts signed thereon for the purchase- money, it was decided that a deposit of the title deeds by the solicitor, who had entered into possession and represented to the depositee that the estate was his own and unincumbered, gave such depositee priority over the mortgagees, although the solicitor had deceived one and been implicitly trusted by the other (&). It is, perhaps, impossible to lay down any hard and fast rules on the general question of priority, for in each instance the Court will take account of sill the facts of the case and weigh the several particulars with the utmost nicety, so that the most trifling diflerence will frequently serve to incline the scale of justice (c). Priority, in truth, is emphatically, and in the first place a matter of circumstance, and as such cannot be reduced to a set of unbending canons ; yet at the same time some three or four leading circumstances may be enumerated, which principally afiect and govern this subject. Of these circumstances, the most fundamental turns upon the notice parties have of charges on the property with which they are dealing. If a person purchase, advance money, or other- wise become an incumbrancer on property Avith notice that the same is subject to some lien or claim, he will be compelled to give efiect to such lien or claim {d), nor can that liability, except in one or two anomalous instances, be in any way avoided (e). Thus, as we have seen, a third mortgagee who at the time of making his advance has notice of a second mortgage (6) Hunter v. Walters ; Curling v. 260 ; Birch v. Ellames, 2 Anst. 427. Walters ; Darnell ■». Hunter, L. K. 7 (c) A purchaser with notice of a Ch. 75. dowress's title may protect himself (c) Kice V. Rice, uU swprd, ; Allen v. against same by getting in a prior legal Knight, 11 Jur. 527. . title or term. Co. Litt. 208 a. (d) Maundrell v. Maundrell, 10 Ves. 232 FUNDED SECURITIES OR SECURITIES ON PROPERTY. cannot by subsequently getting in the legal estate tack, so as to cut out the mesne incumbrancer (/). On the other hand, a purchaser or incumbrancer without notice of any pre-existing lien or claim, may frequently, on acquiring knowledge thereof, protect himself against the same by taking some precaution, which the person entitled to the prior charge has omitted. Thus, if a debtor create successive charges on a fund held for him in trust, the parties in whose favour the charges are made will be entitled in the order in which notice is given to the trustee of their respective rights {g). When we speak of a lien or claim, we mean a lien or claim which can be judicially enforced ; hence, a purchaser for valuable consideration of an estate, whereof the vendor has already made a voluntary con- veyance, can even with notice of such conveyance hold against the voluntary grantee ; for though a voluntary grant of land cannot be directly defeated by the grantor Qi), nor an unwilling purchaser be compelled to take the title by a vendor who has made such grant (i), yet neither can it stand against a pur- chaser for valuable consideration (Jc) ; nay, fui'ther, if made without power of revocation, it will be set aside on the ground of presumed mistake, unless it is clear the settlor intended it to be irrevocable (]). And once a good title to an incumbered estate is obtained by passing into the hands of a bond fide purchaser for value without notice, that good title will be transmitted to subsequent alienees, even with notice of the original charge ; thus, if A, purchase an estate with notice of an incumbrance, and then sell it to B., who has no notice, and B. afterwards sells it to C, who has notice, the estate in the hands of C. will be discharged of the incumbrance (m) ; but if (/) Ante, p. 113. 391. (jf) Loveridge D. Cooper, 3 Rubs. 30 ; (ft) Buckle v. Mitchell, 18 Ves. Foster V. CockereU, 9 Bli. 332 ; In re 100. Smallman's Estate, I. R. 2 Eq. 34 ; In (I) Hall v. HaU, L. B. 14 Bq. 365. re Freshfield's Trust, W. N. (1879) 41. (m) Harrison v. Forth, Pre. Ch. See Assignments, jjosi, p. 307. 61: McQueen v. Farnuhar, 11 Ves. (h) 27 Eliz. ^;. 4. 477. {i) Peter v. Nicolls, L. K. 11 Eq. EQUrrABLB MOETGAGES. 233 the estate become re-vested in A., he will be bound by the original equity (n). "With this brief sketch of the effect of notice, let us next turn to its forms and kinds. Notice is either actual — that is, posi- tive knowledge of the fact brought directly home to the party (o), of which it is sufficient to observe that to be effective it must proceed from some person interested in the pro- perty ( p), and may be either verbal or written ; or constructive notice, that is, evidence of notice, the presumption of which is so strong, that the Court wiU not allow of its even being contro- verted (q). Cases of constructive notice have been resolved into two classes : — 1st, where the party charged has actual notice that the property in dispute is incumbered or in some way affected, and the Court thereupon binds him with constructive notice of facts and instruments, to a knowledge of which he would have been led by inquiry after the incumbrance or other circum- stance affecting the property, of which he had actual notice ; 2nd, where the Court is satisfied, from the evidence before it, that the party charged designedly abstained from inquiry for the very purpose of avoiding notice (r). Under the first class of constructive notice, it is held that whatever is sufficient to put a party upon inquiry (that is, whatever has a reasonable certainty as to time, place, circumstances, and persons) is good notice to bind him (s) ; thus, notice of a lease is notice of its contents (t) ; so, notice of charges upon an estate will be notice of all consequential charges (u) ; so, a mortgagee with notice that property mortgaged belongs jointly to mortgagor, and a third person, who carry on partnership business, is liable to be post- poned to such third person (x). Under the second class of constructive notice, it has been (n) Kennedy^;. Daly, lSch.&Lef. 379. («) Hall v. Smith, 14 Ves. 426; (o) As to actual notice through an Meldeu v. Slater, L. R. 7 Eq. 523 ; agent, see infrd, p. 234, et seq. Hyde v. Warden, L. R.. 3 Ex. D. 72. (p) Natal Land Co. v. Good, L. E. 2 (u) Ware v. Lord Egmont, 4 De G. P. C. 121. M. & G. 460 ; Armstrong v. Lynn, Ir. (?) Plumb V. Eluitt, 2 Anst. 438. K. 9 Bq. 186. (r) Jones v. Smith, 1 Hare 43. (x) Cavander v. Bulteel, L. E. 9 Ch. is) Smith V. Low, 1 Atk'. 490. 79. 234 FUNDED SECURITIES OR SECURITIES ON PROPERTY. decided that a bond fide incumbrancer honestly believing he has got the necessary deeds, is not bound to examine the same, or bound by constructive notice of their actual contents, or of any deficiences he might have discovered by examination of them (y). So, where the solicitor of a legal mortgagee omitted to examine a parcel which was given to him previously to the execution of the mortgage deed, and which purported to con- tain all the title deeds, but in fact contained only the earlier deeds, the conveyance to the mortgagor having been previously deposited by way of equitable mortgage, it was held there was not such wilful negligence as would fix the legal mortgagee with constructive notice of the prior charge, over which accordingly he was allowed preference (z). But where an equitable mort- gagor attempted by marriage articles to settle the property charged on his intended wife, and in answer to her solicitor's inquiries said that the deeds were unincumbered, but at his banker's (the depositees), it was held the answer was insufficient to excuse further inquiry, and that, consequently, the wife must be taken to have had constructive notice of the mortgage (a). To charge a party with notice, it is' not necessary that he himself should have information ; notice to one's soUcitor, counsel, or agent, is notice to oneself, though no communica- tion on the subject ever pass between adviser and client (6). The notice may be either actual or constructive, but to bind the principal it must be received by the agent in the same transaction or course of employment (c), or it must be shown that at the time of the negotiation the knowledge, if obtained on a different occasion, is positively and distinctly in the mind of the agent (d). The doctrine that notice to a professional adviser is notice to {y) Dixon v. Muckleston, L. E. 8 Ch. (c) Warrick v. Warrick, 3 Atk. 292 ; 155. Worseley v. Earl of Scarborougli. 3 Atk. {z) KatclifEe v. Barnard, L. R. 6 Ch. 292. 662. {d) Hargreaves v. KothweU, 1 Keen, (o) MaSfield v. Burton,L. K. 17Eq. 15. 154 ; Ogilvie v. Jeaffreson, 5 Jur. N. S. (6) Le Neve v. Le Neve, 3 Atk. 646 ; 970 ; Banco de Lima v. Anglo Peruvian Saffron, &c., Soc. v. Eayner, L. R. 10 Bank, L. R. 8 Ch. D. 160. Ch. D. 696. EQUITABLE MORTGAGES. 235 his client, is supported on two grounds, viz. : — (1) that the former is presumed to communicate to the latter any material information concerning him (e) ; (2) that the former is the repre- sentative or alter ego of the latter (/) ; whence it follows that the doctrine cannot apply so as to impute to the client, notice of his adviser's fraudulent conduct or its consequences, since these would be kept carefully concealed by the wrong-doer {g). What precise conduct is fraudulent within the meaning of this rule it is usually extremely difficult to determine, and space forbids us to attempt more than a rough statement of a few leading points. A client will be exonerated from knowledge of a material fact personal to his adviser and suppressed by him as a thing done by him in direct violation of his duty as trustee ; thus, where A., a trustee having duly invested the trust funds on mortgage, subsequently delivered up the title deeds to the mortgagor, who deposited the same, with the exception of the mortgage deed with his bankers, by way of equitable mortgage, and the bankers sent the deeds to A. for his approval as to the goodness of the mortgagor's title, and A. certified the same to be good ; it was held that the bankers by reason of A.'s fraud had no notice of the prior incumbrance, and were therefore entitled to rank as second mortgagees after the cestui que trust (h). On the other hand, it has been decided that, where A. one of three trustees executed an assignment of leasehold property held jointly by them, forging the signatures of his two co-trustees, and the requisite assent of the cestui que tnst, the purchaser for whom A. acted as solicitor had constructive notice of the trust, even as to A.'s third share in the property, which alone passed, and of which, therefore, a re-conveyance was ordered (i). The suppression of a deed is not a sufficient fraud on the part of an agent to prevent notice to him, being notice to his (e) Jeimings v. Moore, 2 Keen, 609. ley v. Kiohes, L. R. 9 Ch. D. 189. (/) RoUand v. Hart, L. R. 6 Ch. {h) Waldy v. Gray, L. R. 20 Eq. 678. 238. (g) Kennedy v. Green, 3 My. & K. (i) Buraot v. Savage, L. R. 2 Eq. 699 ; In re European Bank ; ex pa/rte 134. Oriental Bank, L. R. 5 Ch. 328 ; Brad- 236 FUNDED SECURITIES OR SECURITIES ON PROPERTY. principal (k) ; but the presumption of constructive notice can- not be acted upon in the face of positive evidence adduced by the party charged ; hence, the mortgagee of a feme covert's real estate, having been informed by her and her husband there was no incumbrance thereon, was held not to be affected by the knowledge of a person who acted as solicitor for both parties that the mortgagors were under an obligation to settle the property, such solicitor having told the mortgagors he would not communicate the fact to the mortgagee (1). If a mortgagor act as solicitor for the mortgagee, the latter wiU be bound by all facts within the knowledge of the former, so far only as he would be, were the same facts within the knowledge of an independent solicitor. Hence, in such case, if a mort- gagee use due diligence in making inquiries, he wUl not be postponed because the mortgagor does not inform him of a prior incumbrance ; therefore, where a solicitor created a legal mortgage on a leasehold and gave the mortgagee a reasonable excuse for not delivering the lease, which, in fact, he had pre- viously deposited as an equitable mortgage, it was held the legal mortgagee was entitled to priority as having no notice of the equitable mortgage (m-). This last case suggests another leading circumstance affecting priority, viz., possession of the legal estate. It is a general principle that between several incumbrancers on the same pro- perty, he who has got both the legal and equitable interest is entitled to the first charge; but this preference will not be allowed if the party seeking to enforce it has been guilty of gross negligence (n). The law is " that a legal mortgagee is not to be postponed to a prior equitable one, upon the ground of his not having got in the title deeds, unless there be fraud or gross negligence on his part ; that the Court will not impute fraud, or gross or wilful negligence to the mortgagee, if he has bond Jide inquired for the deeds, and a reasonable excuse has (k) Atterbury v. Wallis, 8 D. M. & (m) Espin i;. Pemberton,28L. J. Ch. G. 484. 308. {I) Sharp V. Toy, L. E. 4 Ch. 35. (m) Wortley v. Birkhead, 2 Ves. 573. EQUITABLE MOETGAGES. 237 been given for the non-delivery of them, but that the Court will impute fraud or gross and wilful negligence to the mort- gagee if he omits all inquiry as to the deeds " (o). The mere fact, then, of a mortgagee leaving the title deeds in possession of the mortgagor without fraud, will not postpone such mort- gagee to a second mortgagee who has taken the title deeds without notice of the prior incumbrance ; indeed, if a mortgagee were absolutely bound to get in the title deeds, it would be impossible for a man to mortgage a part of an estate with- out throwing a cloud over the title to the whole, inasmuch as a mortgagee cannot be compelled to produce the mortgage deed, and hence a subsequent incumbrancer could not be cer- tain how much of the property was charged (p). At the same time, a legal mortgagee who gives up the title deeds to the mortgagor, even for a specific purpose, is guilty of such careless- ness, that he will be postponed to an equitable mortgagee acting bond fide, with whom the mortgagor, in breach of his engagement, deposits such deeds (g). As between two equitable mortgagees, possession of the title deeds gives priority in case the first mortgagee has been guilty of default, or of acquiescence amounting to default, but not otherwise {r). An equitable mortgagee of land is entitled to enforce his charge in priority to a creditor of the mortgagor, who, without notice of the equitable mortgage, subsequently thereto recovers judgment against the mortgagor and obtains actual possession of the lands under an elegit (s) ; but an equitable mortgagee does not gain priority by getting in the legal estate after notice that the mortgagor has made himself trustee for the owner of a prior equity {t) ; nor will a conveyance of property (in breach of trust), the title deeds to whictfhave been previously deposited with the grantor's bankers, to secure the balance of his current (o) Hewitt V. Loosemore, 9 Hare, 397 ; Spencer v. Clarke, L. B. 9 Ch. D. 449 ; Agra Bank Limited v. Barry, L. 137. E. 7 H. L. 135. (s) Whitworth v. Gaugain, 15 L. J. (p) "West V. Eeid, 2 Hare, 249. Ch. 433. (}) Briggs V. Jones, L. E. 10 Eq. 92. (t) Mumford v. Stohwasaer, L. E. 18 (r) Thorpe v. Holdsworth, L. B. 7 Eq. Bq. 556. 139; Layard v. Maud, L. E. 4 Eq. 238 FUNDED SECC7EITIES OE SECURITIES ON PROPERTY. account with a memorandum of agreement to execute any in- struments necessary for legally carrying out the security, avail a subsequent purchaser for value without notice (u). One more circumstance which has a most important part in determining the priority of incumbrancers, is that of registra- tion, of which we need only consider two kinds, viz. : 1. Regis- tration of assurances of lands in Ireland (x), and in the counties of Middlesex (y) and Yorkshire (z) ; 2. Registration of titles under the Land Transfer Act (a), the Merchant Shipping Act (6), and the practice governing the transfer of stock or shares in the Bank of England or public companies. 1. By several Acts of Parliament, it is provided that registers of memorials of deeds and wills affecting lands in Ireland (c) and in the counties of Middlesex (cZ) and Yorkshire (e) shaJl be kept, and that brief abstracts of such deeds and wills shall be entered thereon. The effect of registration under these statutes is not to confer a title, but to furnish authentic evidence of dealings with the lands concerned ; hence, whilst a person who registers a conveyance cannot pass his interest thereunder by mere entry on the register, he can rely upon the latter as proof of his right to hold against persons claiming under unregistered instruments. Thus, a bond fide purchaser for value, or incum- brancer, who duly registers, will be preferred to a party entitled under a prior instrument, no memorial of which has been entered on the register ; but as the object of registration is to afford information of the charges affecting the lands, no prefer- ence will be allowed over an unregistered purchase or incum- brance, of which a subsequent purchaser or incumbrancer who registers has notice at the time he contracts (/). However, to deprive a second incumbrancer oT priority gained by registration («) Maxfield v. Burton, L. E. 17 Eq. (6) 17 & 18 Vict. u. 104. 15 ; sed qumre Pilcher v. Rawlins, (c) 6 Anne, o. 2. L. R. 7 Ch. 259. (d) 7 Anne, o. 20. (k) 6 Anne, c. 20. (e) 2 & 3 Anne, t. 4 ; 6 Anne, c. 35 ; (y) 7 Anne, c. 20. 8 Geo. II. c. 6. (z) 2 & 3 Anne, c. 4 ; 6 Anne, c. 35 ; (/) Credland v. Potter, L. E. 18 Bq. 8 Geo. II. c. 6. 350 ; In re Wright's Mortgage Trust, (a) 38 & 39 Vict. c. 87. L. E. 16 Eq. 41. EQUITABLE MORTGAGES. 239 there must be actual notice amounting to fraud {g), and, for this purpose, a solicitor's knowledge of a ])rior incumbrance, which he does not communicate to his client, is such notice to the client (Ji) ; nor is a client's case aided because an instru- ment drawn by a solicitor having such information is after- wards registered by a solicitor without such information (i). If a party or his solicitor hondfide makes inquiry for the title deeds, and a reasonable excuse is given for their non-produc- tion, the party is not affected with notice of an equitable mortgage made by their deposit ; and a party who after such inquiry takes a legal mortgage and registers the same. will be preferred to a prior unregistered equitable mortgagee (k). Equitable mortgages of lands are within the Eegistry Acts, and earlier registration, even on the same day, gives priority (I). In England registration of a second mortgage will not prevent a prior mortgagee from tacking a third mortgage when he had no actual notice of the second mortgage (m). 2. The principle of registration of title, whether the subject be land, ships, stocks, or shares in private companies, is to enable the person whose name is entered on a public record, as owner or incumbrancer of property, to deal with the same free from aU restrictions, save those which appear on such record (%) ; and to give to the several persons, having charges upon the same property, priority amongst themselves according to the order in which their charges are entered on the record, no matter in what order the charges were created (o). Persons whose names are so recorded are owners or incumbrancers of legal interests only, and to protect equitable interests in the same property the parties entitled must enter notices or cautions on the register, or obtain a writ or order preventing a disposition of (3) Agra Bank Limited v. Barry, (m) Bedford a Backhouse, 2 Eq.Abr. L. K. 7 H. L. 135. See casea there cited. 615, PI. 12. (h) Le Neve v. Le Neve, 3 Atk. 646. («) 38 & 39 Vict. c. 87, ss. 7—9, 13 (J) RoUand v. Hart, L. R. 6 Ch. 678. —15. (h) Agra Bank v. Barry uU suprd. (0) Ibid., ss. 28, 49, 53, 54 ; 17 & 18 (l) Neve V. PinneU, 2 Hem. & Mil. Vict. 0. 104, s. 69 ; 8 & 9 Vict, c 16, 170 ; ante, pp. 224, 225. ss. 18, 20 ; post, pp. 281, 284. 240 FUNDED SECURITIES OR SECURITIES ON PROPERTY. the fund without their knowledge or consent (p). The dates of these notices will regulate the priority of the parties equitably interested, and they wiU rank in that order amongst even legal owners or incumbrancers. Equitable interests not protected by notices cannot be enforced against registered owners or incumbrancers as such — that is, any person who acquires a registered title acquires it absolutely, so that the property is free from any secret equities it may have been subject to in the hands of the transferor, against whom the party equitably interested can only have a personal remedy. (p) Ante, p. 158 ; see also 25 & 26 panies Acts, 3rd ed., 72 et se(i. Vict. 0, 89, B. 30, and Buckley's Com- 241 CHAPTER XXIV. PAWNS AT COMMON LAW. A PAWN or pledge is a transfer of the possession, 9,nd of a special ownei-ship in a given subject of property, to secure the payment of a certain sum of money, or the performance of any other engagement on the part of the transferor (the pawnor or pledgor) towai'ds the transferee (the pawnee or pledgee) («). There are three kinds of securities on property — the first, a simple lien ; the second, a mortgage passing the property out and out J the third, intermediate between a lien and a mort- gage — viz., a pledge where by contract a deposit of goods is made a security for a debt, and the right to the property vests in the pledgee, so far as is necessary to secure the debt (b). A pawn thus differs from a mortgage in requiring a transfer of possession, and in conferring a limited, not a conditional, dominion ; but a physical transfer of possession is not necessary, for the possession of the pledgor may be agreed to be the pos- session of the pledgee (c), and if the creditor be already in possession of the thing proposed to be pledged, that thing will vest in him as a pledge by virtue of the contract (le (c) Walker v. Jones, L. %. 1 P. O. 50. morfeag^e by deppsii, see' ^qb^on v. (d) Foster v. Pox, 4 W. & Se^:g. &2. 314 FUNDED SECUfilTIES OE SECURITIES ON PROPERTY. as the latter has to all securities the principal gives the surety (e). The effect produced by the assignment of a security simply upon the debt secured depends upon the nature of the security, the mode of assignment, and the intention of the parties. If the debt and security are so related that no action can be brought except on the security, then a due transfer of the latter will operate to transfer the former. Thus, a debt secured by the debtor's bill or note, or merged in a bond or judgment, will pass by due assignment of such bill or note (during its currency), bond, or judgment. If, however, the debt and security support distinct and co-existent causes of action, a transfer of the security does not necessarily transfer the debt. Thus, a mort- gage debt does not pass by a conveyance or assignment of the property mortgaged ; but upon this matter we shall have more to say at a subsequent stage (/). As to the mode of transferring various securities, we may, in regard to negotiable instruments, refer to our previous observa- tions. As to bonds and judgments, it is doubtful whether they can be transferred otherwise than by instrument under seal, that is, supposing they be not collateral to a simple contract debt, for in the event that they were so, they would follow the assignment of such debt; however, a bond fide assignee for valuable consideration of a bond or judgment, or a person in whose favour the obligee or judgment creditor declares a trust in the bond or judgment, is not damnified by the absence of a sealed instrument, since the Court will in such case aid the defective assignment (g). In every case, however, except that of negotiable instruments, the effect of transferring a security is governed by the intention of the parties ; hence, the delivery of an instrument may have no other result than to confer a mere lien thereon, without any right to recover the debt it secures (A), and the transferee of a security transferred by de- livery will not be deprived of such lien, because there is no (e) Wright V. Morley, 11 Ves. 12. (g) Ante, p. 303. Post, pp. 407—409. {h) Gibson v. Overbury, 7 M. & W. (/) Poit, pp. 409, 410. 555; WUliains«;.Thorp,2 Sim. 257, 570n. ASSIGNMENTS. 315 effectual assignment to him of the debt secured (i), unless, indeed, it expresslj' appears that the only object of delivering the security was to pass the debt, in which case the transferee cannot retain the instrument against the party entitled to the debt (k). If the assignor of a security have previously assigned the debt secured, the assignee of the security (except in the case of current negotiable instruments) takes subject to the equities, and will be a trustee for the assignee of the debt, or else have a mere lien on the instrument itself, according to circumstances (l). Where, however, M. & Co. deposited with S. & Co. the mortgage deeds of certain colonial property, of which M. & Co, were the mortgagees, for securing a floating balance due from M. & Co. to S. & Co., and subsequently assigned to S. & Co. the mortgage debt, " in addition to the securities then already held by S. & Co., but without making any actual assignment of the mortgage itself, or of the mortgaged property, it was held that S. & Co., nevertheless, continued the equitable mortgagees of the mort- gaged property, and were not mere assignees of the debt, and that, consequently, on the bankruptcy of M. & Co. they had a good lien on the property as mortgagees, though as assignees their claim was defeated for want of notice of the assign- ment " (m). There is an implied covenant by the assignor of a debt not to do any act in derogation of his deed (n), and he will be restrained from suing the debtor for his own benefit (o). Section II. Assignments under the Jvdicature Act, 1873. We may now pass to Assignments under the Judicature Act, 1873. The following is the enactment in question : — (J) Evunmens v. Hare, L. R. 1 Ex. D. oompte de Paris, L. B. 2 P. C. 393. 169 ; Barton v. Gainer, 27 L. J. Ex. (m) Ex parte Smith, et al. 2 D. & C. 390. 271. (4) Green v. Ingham, L. E. 2 C. P. («) Gerard v. Lewis, 2 L. R. 0. P. 525; Searle v. Law, 15 Sim. 95. 305. (.1) Rodger v. The Comptoir d'Es- (o) Jeffs v. Day, L.,-R. 1 Q. B. 372. 316 FUNDED SECURITIES OB SECUBITIES ON PROPERTY. Any absolute assignment, by writing under the hand oi the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or otlier person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been, effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, an4 all legal and other remedies for the same, and the power to give a good discharge for the same, without the con- currence of the assignor : Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same ; or be may, if he think fit, pay the same into the High Court of Justice, under and in conformity with the provisions of the Acts for the relief of trustees (p). The general effect of the foregoing provision may, perhaps, at first light appear to present no difficulty; roughly speaking, it would seem that the old rule at Common Law, which pro- hibited the assignment of choses in action is now, if not utterly swept away, at least always capable of being defeated ; that, in fact, the assignee of a chose in action, assigned in the prescribed manner, has in the present day a legal title which he may eidforcei bpfo^e a legs^l tribunal, where formerly be would have had but an equitable title, which he could onJy enfojree befwe an equitable tribunal. But then comes the question — Do separate legal and equitable tribunals any longer co-exist, and, if not, in what sense can choses in action be said to have {p) S. 25, Bub-s. 6, 36 & 37 Vict. c. 66. ASSIGNMENTS. 317 become assignable at law 1 To this query we answer that in the High Court of Justice there is no distinction into legal and equitable tribunals ; there are, indeed, five divisions in the High Court, and certain special matters are assigned to each, and in each the practice is only so far uniform as the recent legislation has expressly made it so, for in the absence of positive enactment to the contrary, the practice that formerly obtained in the several amalgamated Courts prevails in the corresponding divisions of the High Court ; but, subject to such differences in the mode of administration, the substantive law administered is the same in all the divisions, consequently an action to enforce a merely legal demand will now be entertained in the Chancery Division (q) — an action to enforce a tnerely equitable demand —in a Common Law Division (r). Thus, then, under the general provisions of the Judicature Acts and Orders, the assignee of a chose in action is apparently empowered to sue in a Common Law Division, though his claim be founded on a merely equitable assignment, and, therefore, it may be asked of what avail was it to make choses in action legally assignable, since all branches of the High Court, and all inferior Courts having jurisdiction in equity, are bound to take cognisance of merely equitable assignments. It cannot be denied that the boon conferred by the statutory power of assignment would have been unequivocal did the ancient division into Courts of Law and Courts of Equity still subsist, for, in that case, the assignee of a chose in action would have been entirely indebted to such statutory power for his right to sue in a Court of Law ; yet it must not be supposed that the only result of rendering choses in action assignable at law is to extend the forum in which they may be recovered ; on the contrary, that is but a consequence of the legal title with which the assignee is clothed, so that whereas formerly the assignee could only have an equit- able, he may now acquire a legal, interest in the subject (5) Pooley V. IJriver, li. K. 6 Ch. D. v. West Mostyn Coal and Iron Co., 4S8. L. K. 1 C. P. D. 160. ()•) See o1d3. of Brett, L. J., in Moatyn 318 FUNDED SECURITIES OE SECURITIES ON PROPERTY. assigned. The duality of legal and equitable estates or interests in the same property is preserved unchanged, although the duality of tribunals from which such separation of estates or interests arose has passed away; therefore, on the equitable assignment of a chose in action, the assignor retains the legal, whilst the assignee acquires the equitable, interest in the matter assigned; but under a legal assignment the assignee would acquire the whole interest. To exemplify the distinction under discussion, let us take the bequest of a debt, such a bequest is evidently a specific legacy, but like other chattels disposed of by will, vests in the executor. Now it is well established that, on the executor's assent to the legacy of a corporeal chattel specifically bequeathed, the property therein vests in the legatee, and he can thereupon maintain an action at law to recover the same, nor can it be doubted that the same is the rule if the legacy be of an incorporeal chattel which is capable of legal transfer, as, for example, an annuity. Supposing, however, the legacy be of an incorporeal chattel, which is only capable of equitable transfer, then it is conceived that the assent of the executor could not vest the property in the legatee, but would only operate as an equitable assignment, and as such could he defeated by the executor so long as it was not perfected by notice or otherwise to the debtor; in truth as between the executor and legatee the effect of the assent would be to raise an express trust, of which the former was the trustee, and the latter the cestui que trust, and as the administration of trusts is assigned to the Chancery Division, an action by the legatee against the executor should be instituted in that Division. Applying these observations to the contrast between the legal and the equitable assignment of a chose in action by will, we find that the assent of the executor to the bequest of a debt which satisfies the statutory requirements to constitute a legal assign- ment, will vest the legal interest in the debt in the legatee, who may thereupon dispose of the same as he pleases, or sue therefor in any Division of the High Court, whilst the assent of the executor to the bequest of a debt which only amounts to ASSIGNMENTS. 319 an equitable assignment, will merely vest the express equitable interest in the debt in the legatee, who may thereupon dispose as he pleases of such equitable interest, or sue the executor therefor in the Chancery Division of the High Court. From this example, it is evident that there may co-exist in one and the same debt the duality of legal and equitable interests which may subsist in any corporeal subject of property, and that with consequences relatively as important ; hence, the necessity and justification of a measure, which pro- vides for the assignment of the legal interest in choses in action, even though the area for recovery thereof was not in con- sequence enlarged. Hitherto we have assumed that the legal or equitable assignee of a chose in action may sue indifferently in any Division of the High Court, and, so far as jurisdiction is concerned, there can be little doubt that all Divisions are equally competent to entertain the action ; still, as regards such equitable assignments as come within the description of trusts, the assignee should sue in the Chancery Division, to which the administration of trusts is assigned (s), otherwise his action in a Common Law Division is liable to be transferred, and for the costs of such transfer he would be held responsible. With these general remarks we may proceed to a detailed examination of the above quoted sub- section of the Judicature Act ; it may be analysed under four heads : — (1) the nature and effect of the assignment ; (2) the subject of the assignment ; (3) the nature and effect of the notice to be given to the debtor or trustee of the debt or fund assigned ; (4) the mode in which such debtor or trustee may obtain relief when the right to such debt or fund is disputed. 1. The assignment must be absolute — must be in writing under the hand of the assignor, and must not purport to be by way of charge only; upon these requisites we put the interpreta- tions following : by an absolute assignment we understand an assignment free from condition or reservation of any kind or (s) S. 34 (3) 36 & 37 Vict. e. 66. 320 FUNDED SECURITIES OB SECUEITIES ON PROPERTY. sort ; an assignment in writing under the hand of the assignor is clearly open to two explanations, — it may either mean a written assignment signed by the assignor, or an assignment written by the assignor, though not necessarily signed. We adopt the former as the true explanation, as the more likely to secure creditor, debtor, and assignee against imposition, and also as more convenient and beneficial in the transaction of business ; the requirement that the assignment must not purport to be bv way of charge only seems to imply that in fact the assignment may be by way of charge, provided it is not expressed so to be, otherwise it is difficult to see how the assignment could be of part of a debt or other chose in action ; indeed, it is probable that the end here intended was similar to that contemplated by the various registry of title Acts (t), viz.j to provide a means of transfer which should be unincumbered by trusts. For the validity of an equitable assignment, none of the above requisites are necessary, but, on the other hand, the statute does not make that an assignment which was not one before ; it is held, there- fore, that the payee of a cheque cannot, as assignee, sue the banker on whom it is drawn, since at law there is no privity between such payee and banker, and in equity a cheque is not an equitable assignment of the drawer's balance at his bank (u). An assignment complying with the prescribed requirements does not transfer the legal interest to the assignee, unless or until due notice has been given to the debtor or trustee, who is liable for the debt or other chose iii action assigned ; but of this anon, 2. The subject of an assignment must be a debt or other legal chose in action^ that is, it may be any sum of money, or any right which the assignor is legally entitled to claim from another, but it cannot be anything to which the assignor him- self has only an equitable claim. Thus, not only debts due at Common Law, but also shares in companies (x) and other in- corporeal property, as well as rights or possibilitieSj whether by (i) Ante, pp. 239, 2i0. son v. i'orster, L. R. 19 Eq. 74. (m) Sohrceder v. Central Bank of Lon- (a;) Tempest v. Kilaer, 2 C. B. 300. don, 24 W. R. 710; L. 0". 735 ; Hopkin- ASSIGNMENTS. 321 contract or otherwise,mayalliiow be ttesubjectof legal assignment, so far as they were formerly recoverable at law by the assignor, and capable of equitable assignment; whilst funds and rights held on trust, and only recoverable in a Court of Equity by the cestui que trust, are incapable of being by him legally assigned. The sale of real estate furnishes an apt illustration of a chose in action which at one period is, and a chose in action which at another period is not, the subject of legal assignment : the moment a binding contract of sale and purchase is complete, the vendor becomes a trustee for the purchaser of the property, and the purchaser becomes a trustee for the vendor of the purchase money, and on conveyance the purchase money be- comes a legal debt due from the purchaser to the vendor ; after conveyance the purchase money may be the subject of a legal assignment by the vendor, but before conveyance, or so long as it remains a. mere trust fund, it can only be the subject of an equitable assignment at the hands of the vendor. Hence, it appears that legal assignments are confined to a special class of choses in action, whilst equitable assignments extend to choses in action in general. 3. The notice to be given to the debtor or trustee of the assigned debt or fund must be an express notice in writing, but no provision is made as to the party by whom such notice is to be given, nor is the same required to be signed. Therefore, a written notice that is express and definite will suffice, provided it show there has been an absolute assignment, but not other- wise; hence, where A. received notice from B. and C. not to pay money or issue shares to D. and E. as B. and C. claimed to have had the shares assigned to them by D. and E., and A. also received a letter from D. and E. denying the alleged assignment and demanding the issue of the shares to which they were otherwise entitled, it was held there was no sufficient notice qf an absolute written assignment, and the application of A. for leave to interplead was accordingly refused (h). The effect (A) He The Hamburgh and Brazilian Kly. Co., Bitt. Pr. Cas. cxxx. Y 322 FUNDED SECURITIES OR SECURITIES ON PROPERTY. of notice is to render the assignment effectual in law (subject to all equities which would have been entitled to priority if the Judicature Act had not passed) to pass and transfer the legal right to the assigned debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the con- currence of the assignor (i). Hence, where there are successive assignments of the same chose in action, the priority of the assignees will depend on the dates of the notices of the assign- ments given to the debtor or trustee liable for such chose in action, not on the dates of the assignments themselves ; but of course no notice can be operative if given before the debt or chose in action exists as against the debtor or trustee (k), or if it be itself insufficient, or if a superior equity overrides the claim of the assignee. 4 The debtor or trustee of an assigned debt or fund has two courses open to avoid personal liability in determining whether the assignment, or which of several opposing or conflicting claims is valid — he may either call upon the several claimants to interplead or he may pay the debt or fund into Court in conformity with the provisions of the Acts for the relief of trus- tees. Before, however, either of these courses can be adopted, the debtor or trustee must have notice that the right to the debt or fund is disputed, and that, under a valid title ; there- fore, a debtor or trustee cannot avail himself of either course where the two claimants to the chose in action are, one, the person originally entitled — the other, his alleged assignee, claiming under an assignment of which no sufficient notice has been given, for in such case the debtor or trustee is not bound to take any notice of the assignment, and can incur no liability by payment to the person originally entitled. Where a plaintiff, who had become bankrupt, but who was appealing from the order of adjudication, had assigned a judgment which he had obtained on an award against the defendant, and written notice (t) Brice v. Bannister, L. R. 3 Q. B. {k) Ante, p. 311. T>. 569. ASSIGNMENTS. 323 of the assignment was given to the defendant, from whom the plaintiff's trustee in bankruptcy also claimed the judgment, an order was made that the defendant be at liberty to pay the money into Court less his taxed costs, and that as against him proceedings be stayed (l). Interpleader is a mode of procedure whereby a person, who is in possession of property in which he himself claims no interest but which is claimed from him by several different parties, may obtain a judicial adjudication as to the disposition of the disputed property, which will at once settle the rights of the parties and relieve him from further liability. The practice in interpleader is that which prevailed in the Courts of Common Law as prescribed by the Inter- pleader Acts, 1 & 2 Will. IV., c. 58,_and 23 & 24 Vict. c. 1 26 (m) ; it may be summarised as follows : The party in possession of the disputed property applies to a judge at chambers by summons calling on the several claimants to appear and state their respective claims ; such application must be founded on an affidavit showing that the applicant does not claim any interest in the subject matter in dispute ; that the right thereto is claimed or supposed to belong to some third party who has sued or is expected to sue for the same ; that the applicant is ready to bring into Court or dispose of the same as may be ordered, and that he does not collude with such third party (m). On default of appearance by a party duly served with the order to appear, the judge may declare such party and all persons claiming by, from, or under him to be barred against prosecuting their claim against the applicant, his executors, or administra- tors (o). On due appearance by the several parties served with orders to appear, the judge may deal with the case in one or other of the following ways : 1. When the subject matter is small, and if it appear desirable, he may, on application of any of the parties, decide the question summarily (p). 2. When the {I) Dodds V. Shepherd, L. E. 1 Ex. (») S. 1, 1 & 2 Will. IV., o. 58. D. 75. (o) Ibid., B. 3. (m) 38 & 39 Vict. u. 77, O. I., ,.-. % [p] S. 14, 23 & 24 Vict. u. 126. Y2 324 FUNDED SECURITIES OR SECURITIES ON PROPERTY, facts are admitted and the question is one of law he may in his discretion either decide the matter summarily (q), or, 3, order a special case (according to the provisions of the Common Law Procedure Acts, 1852, 1854) to be stated for the opinion of the Court. 4. He may direct an issue to be tried and order who shall be plaintiff and who defendant respectively therein (r). All rules, orders, matters, and decisions to be made and done ia interpleader proceedings may be entered of record, with a note in the margin expressing the true date of such entry, to the end that the same may be evidence in future times, if required, and to secure and enforce the payment of costs directed by any such rule or order ; and every such rule or order so entered shall have the force and effect of a judgment in the Supreme Court (s). The above is an account of the procedure when the party in possession, whether sheriff or private person, has not been sued in respect of the disputed property ; where, however, an action has been brought against such party by one of the claimants, the application to a judge at chambers for an order to inter- plead must be made before delivery of defence (t), and in such case, and on appearance of a claimant who disputes the plain- tiff's title, the judge may order such claimant to make himself defendant in the original action. Next, as to the relief the debtor or trustee of an assigned debt or chose in action may have under the Trustee Eelief Acts ; by the first of these statutes, viz., the Trustee Relief Act, 1847, trustees, executors, administrators, or other persons, or the major part of them holding any moneys on trust, or in whose names any annuities or stocks in the books of the Bank of England or of the East India Company, or any Government or Parliamentary securities are standing, upon any trusts whatsoever may, on filing the prescribed affidavit and with the privity of the Paymaster-General, pay such trust moneys or transfer such (}) S. 15, 23 & 24 Vict. o. 126. (s) S. 18, 23 & 24 Vict. c. 126. {)•) S. 1, 1 & 2 Wm, IV. c. 58. (t) 38 & 39 Vict. c. 77, 0. 1., r. 2. ASSIGNMENTS. 325 annuities, stocks, or securities into Court (u). Trust moneys are paid into Court by being paid into the Bank of England to the account of the Paymaster-General, in the matter of the particular trust in trust to attend the orders of the Chancery Division of the High Court; annuities, stocks, and securities are transferred into Court by being trans- ferred into the name of the Paymaster-General, in the matter of the particular trust in trust to attend the orders of the said Division (x). The receipt of the cashier of the Bank of England or the certificate of the proper officer is a sufficient discharge to trustees or other persons for money, annuities, stocks, or securities so paid or transferred into Court. Orders for the investment, payment, transfer, or delivery of any moneys, annuities, stocks, or securities paid or transferred into Court are made on summary petition to the Lord Chancellor or Master of the EoUs, who may, however, if they so think fit, direct any suit or suits to be instituted in respect to the funds in question. The affidavit to be filed before funds can be paid into Court is prescribed by Rules of Court, 22nd December, 1874, rule 34<, made in pursuance of the Chancery Funds Act, 1872 (y) ; the Chancery Funds Amended Orders, 22nd December, 1874, pro- vide that the person paying funds into Court shall forthwith give notice thereof to the several persons named in his affidavit, and that notice of any application respecting such funds shall be served on the party paying in the funds and the several parties interested therein (z). The Act for the further relief of trustees was passed in 1849 ; it enables the Chancery Division upon application by a majority of trustees, executors, administrators, or other persons holding any moneys on trust, or in whose names any annuities or stocks in the books of the Bank of England or of the East India Com- pany, or any Government or Parliamentary securities are stand- la) S. 1, 10 & 11 Vict, c. 96. As to (s) Ibid, 66 ; 35 & 36 Vict. c. 44; service out of jtttisdictioii, /« re Harvey's Povah v. Walker, L. R. 15 Eq. 316; Trusts, L. R 10 Ch. App. 275. In re Battersby's Trusts, L. R. 10 Ch. {x) S. 1, 10 & 11 Vict. 0. 96. D. 228 ; In re Hardley's Trusts, L. E. ' (y) Ibid., ss. 1, 2 ; Morgan's Ch. Acts 10 Ch. I>. 664. and Orders, 5th ed., 65. 326 FUNDED SECUKITIES OR SECUKITIES ON PROPEETT. ing, upon any trusts whatsoever, to order the payment or transfer of such annuities, stocks, or securities into Court without the concurrence of the other trustees, executors, administrators, or other persons (a). The object of this enactment was to remove certain doubts which had been raised as to the operation of the previous statute in enabling a majority of the trustees or other persons above mentioned to deal with the trust funds as therein specified. Before the Judicature Act the debtor of an assigned debt was not at liberty to pay the amount due into Court ; that privilege belonged only to trustees or persons who actually held money on trust ; therefore it was decided that an insurance company had no right to so pay in the moneys due on a policy which had been assigned, though it was clear the company was entitled to refuse payment to the representative of the assignor without proof that the claim of the assignee had been discharged (b). Under the enactment we have been considering, a debt to become due may be assigned, and from due notice the debtor becomes bound, notwithstanding his refusal to recognize the assignment, nor is it necessary to join the assignor in an action thereon, nor is the same subject to any equities save such as have arisen before the notice, or such as arise subsequent thereto otherwise than by the acts of the debtor (c). An order from a creditor to his debtor under an ordinary contract for the ' price of goods or for work and labour, or the like, to pay to a third party, can confer a right on the latter only so far as it operates as an assignment of the debt; it is not an order for the payment (d) of money within the Stamp Act (e). {a) S. 1, 12 & 13 Vict. c. 74. L. E. 4 Q. B. T>. 280. (5) In re Haycock's Policy, L. E. 1 (rf) Buck v. Robson, L. E. 3 Q. B. D. Ch. D. 611 ; ante, p. 88. 686 ; Fisher v. Calvert, "27 "W. E. 301. (c) Brice v. Bannister, L. E. 3 Q. B. (e) S. 48, 33 & 34 Vict. c. 97 ; poit, D. 569; Ex pa/rte Hall; /» re Whitting, p. 432. L. E. 10 Ch. D. 615 ; Turquand v. Fearon, 327 CHAPTER XXX. LIENS. In its most general signification a lien may be defined as a right to retain possession of, or judicially realise the property of another, so long as a debt or other money demand due — either in respect of such property or otherwise — ^by the owner to the person claiming to exercise the right shall remain unsatisfied. Thus, the right of a tailor or other workman to retain clothes or other chattels for the cost of repairs or other work done thereon, or the right of a salvor to have the property saved realised in payment of his claims, constitutes a lien. It has, indeed, been laid down that " there can be no lien upon any property unless it is in the possession of the party who claims the lien " (a), but this proposition must only be understood of possessory liens. It is not true of vendor's lien, in the case of real property, nor of salvor's lien, nor of the lien implied, as we have seen, in a mortgage. A lien must be carefully distinguished from a mort- gage, pawn, assignment, or charge ; in common with these latter a lien is a security on property, and, so far as it extends, an incumbrance thereon, but the property affected by a mere lien is never in any way during the continuance of the lien trans- ferred to the person holding the same, although, as we shall see, such person may in many cases be entitled, by means of his lien, to have the property transferred or realised in his favour. It is quite otherwise with mortgages and other securities on property; (ffl) Shaw V. Neale, 6 H. L. C. 581, per Chelmsford, L.C. 328 FUNDED SECURITIES OR SECURITIES ON PROPERTY. to the extent of the incuAbrancer's interest, an equitable ownership, and, if duly conveyed, a legal ownership also passes to the incumbrancer, and from such ownership springs a right in all cases to have the property applied in discharging the incumbrance, whereas it is only by exception, and not in any respect as an owner, that the holder of a lien enjoys a similar advantage (b). There is another point in which a lien is dis- tinguished from other securities on property : it alone, of such securities, may be created by mere operation of law ; it may, also, like other securities, be created by agreement of the parties; but the term lien is more properly given to securities of the former description (c). The extent and nature of a lien con- ferred by agreement will depend on the terms agreed upon ; it is open to the parties to make what stipulation they please — always, of course, subject to the law and its construction — upon which we need only observe that it is sometimes extremely difficult to ascertain whether the effect is to establish a mere lien, or some other security on the property in question. A lien created by operation of law is lost by the substitution of some other security and acceptance of the same by the person entitled to the lien ; the difficulty is to prove by clear evidence that such was the intention of the parties. Liens are either general or specific, according as the right to retain or realise property can be claimed in respect of debts or demands of a general class, or only in respect of debts or demands affecting the property sought to be retained or realised. The law leans against general and in favour of specific liens ; hence, no general lien can be claimed except by express agreement, or under a well recognised and established custom. For the purposes of exposition liens may be brought under the four following heads : — I. Vendor's lien : — 1. On real property. 2. On personal property. (6) Attenborough v. St. Katharine's E. 2 H. L. Sc. 128, 137; Chambers *. Dock Co., L. K. 3 C. P. D. 454. Davidaon, L, E. 1 P. C. 296. (c) McLean and Hope v. Fleming, L. LIENS. 329 II. Liens in particular trades and professions. III. Maritime liens. IV. Miscellaneous liens. Section I. — Part I. Unpaid Vendor's Lien on Real Property. As soon as a binding contract for the sale of real estate is entered into, the equitable ownership in such estate becomes vested in the purchaser, and from that moment he and the vendor become reciprocal trustees for each other, the former holding the purchase money, and the latter the estate, in trust for the other (d). The position occupied by an unpaid vendor has been forcibly described as something between that of a bare trustee and of a mortgagee (e). Such vendor, like a mortgagee, is entitled, though not as owner, to possession of the estate and a charge thereon for his purchase money. On payment of the purchase money he ceases to have any beneficial interest and holds as a bare trustee, if the legal estate be not already con- veyed ; or, if it be, is deprived of any right whatever over the property. An unpaid vendor has the right in a- Court of Equity to say, " Either pay me the purchase money or lose the estate," and, on the purchaser's default to comply with the demand within a given time, to have the contract cancelled by judgment of the High Court of Justice (/). The lien obtains not only for the whole purchase money, but also for every part thereof which may remain unpaid ; it does not depend on possession, but is de- rived out of the vendor's former ownership under an implied equity that the price shall be paid before the estate is finally parted (d) Shaw V. Foster, L. E. 6 H. L. D. 506. 333. (/) Ibid. (e) Lysaght v. Edwards, L. K. 2 Oh. 330 FUNDED SECUEITIES OR SECUKITIES ON PROPERTY. with ; hence, it is not defeated by the mere fact of the vendor relinquishing possession, or of his executing a conveyance whicli expresses, contrary to the fact, that the pui'chase money has been paid (g). As between the vendor and parties (other than purchasers without notice) claiming through the vendee, the lien is as binding as between the vendor and vendee themselves ; . thus, it binds grantees of the vendee, whether the grant be voluntary or for valuable consideration, with notice of the lien (h). It also binds the vendee's trustee in bankruptcy (i); but it does not bind purchasers, under which term are to be included mort- gagees and other incumbrancers, for valuable consideration having no notice of the lien, and obtaining a conveyance of the legal estate (j). Where the legal estate is outstanding, and there is no circumstance to put either party in a more meri- torious position, the general principle, qui prior est tempore, potior est jure, will secure to the unpaid vendor his lien, even as against a hand fide purchaser for value without notice (k). But it is otherwise if, by his own diligence or by the laches of the vendor, the purchaser come to have a superior equity, for thei'e, notwithstanding his priority of title, the vendor will be postponed ; thus, it was held that an equitable mortgagee, with whom the title deeds had been deposited by the purchaser of an unpaid for estate, of which the legal interest was outstanding,, must be preferred to the unpaid vendor, who, by his laches in handing over the deeds had forfeited his original priority (l). We have elsewhere dealt with this subject more at large, and need here, therefore, only refer to our previous observations for fuUer information (m). An unpaid vendor may assign over his lien b}'' mere parol (n) ; the assignee, however, can only take subject to the equities (o). He should, therefore, give immedi- {g) Maokreth u. Symmons, 15 Ves. Bro. C. 0. 302. 329. (k) Frere v. Moore, 8 Price 475. {h) Winter v. Lord Anson, 3 Russ. {I) Eioe v. Rice, 2 Drew. 73. 488 ; 1 S. & S. 434. (m) Ante, p. 230, et seq. (i) Bowles V. Rogers, cited 6 Ves. (m) Dryden v. Frost, 3 My. & 0. 670. 95 ; Ex parte Hanson, 12 Ves. 349. (o) Lacy v. Ingle, 2 Ph. 313 ; imte, (j) Gator „. Earl of Pembroke, 1 p. 311, e< seq. ' LIENS. 331 ate notice of the assignment to the purchaser, and to all persons he has reason to believe are in treaty with the latter concerning the estate or any interest therein (p). As maybe inferred from its mode of transfer, a vendor's lien on real estate is only personal property; consequently, on the death of the vendor, it will devolve on his executor or administrator (q). So, conversely, the liability to pay the purchase money is also personal. Accordingly, on the death of the purchaser of an unpaid for estate, the purchase money would formerly have been payable out of the deceased's personal assets (r) ; but now the purchase money due by purchasers dying testate after 31st December, 1854, whose wills were made after that date (s), and by purchasers dying intestate after 31st December, 1877 (t), is made a charge on the estate purchased, unless the purchaser shall have signified some contrary or other intention, as described in a former chapter (u). The effect of these enactments will in time curtail the necessity for the application of the doctrine of marshalling in the administration of a deceased's estate to a very considerable degree. For some years to come, however, there will be many cases to which the new legislation will not extend, therefore we may say something of the rules adopted by the courts in marshalling assets where a vendor's lien has to be satisfied (x). The persons in whose favour marshalling is allowed are the purchaser's creditors, devisees^ and legatees, but not his heirs or next of kin (y). As regards creditors, the doc- trine is applied in the administration of a bankrupt's as well as in that of a deceased's estate ; thus, if an unpaid vendor elect to relinquish his lien and prove for the whole debt in the bank- ruptcy of the purchaser, the latter's trustee will be entitled to stand in his place against the estate, and no benefit will thereby ip) Ante, p. 307. 13 Eq. 493. (?) Fletcher v. Ashbumer, 1 Bro. («) 40 & 41 Viot. c. 34. C. C. 497 ; I. W. & T. L. C. 896, 5th (w) Ante, chap, xvii., pp. 126—129. ed. (a;) As to general doctrine of mar- (r) Broome v. Monck, 10 Vee. 597. shalling, see post, chap. xxxi. _(s) 17 & 18 Vict. i;. 113 ; 30 & 31 (y) Selby v. Selby, 4 Euss. 336. Vict. c. 69 ; Harding V. Harding, L. R. 332 FUNDED SECURITIES OR SECURITIES ON PROPERTY. accrue to any specific incumbrancer thereon {z) ; so, on the death of a purchaser, unsecured creditors will stand in the place of a vendor who is paid out of the personal assets, and specific incumbrancers will not be benefited. As regards devisees of estates other than the unpaid for estate, it is clear that they would stand in the place of the vendor of the latter for any portion of the purchase money that was realised out of property given to them, unless, indeed, such purchase money was ex- pressly charged upon the property so given ; and that, whether the unpaid for estate were devised or allowed to descend, and whether the devisees were specific or residuary {a). The same results, it would seem, ought to follow in favour of legatees ; but some question has been made as to whether a pecuniary legatee whose legacy has been spent in pajnuent of the purchase money of a devised estate ought to be allowed the benefit of marshalling (6). We are of opinion that the sounder view is to extend the indulgence to such legatee, and d fortiori to a specific or demonstrative legatee. To the existence of a vendor's lien it is not necessary that the consideration should consist of a gross sum of money to be actually paid into the vendor's own hands ; the lien will equally avail whether the consideration be such sum, or be an annuity (c), or other series of periodical payments (d), or be the discharge of the vendor's debts (e), or the performance of any other given act on the part of the purchaser ; in these several cases the vendor, on the purchaser's default to make the periodical pay- ment, or discharge the debts, or perform the given act, will be entitled to stand against the estates to the value of the obliga- tion omitted. But here a most important distinction must be noted between the performance of a given act- and a covenant 01' engagement to perform a given act ; for, where the considera- (s) S. 16, 32 & 33 Vict. c. 71 ; Crack- (c) Tardiffe v. Scrughan, cited 1 Bro. nail V. Janson, L. B. 6 Ch. D. 735. C. C. 423 ; Matthew v. Bowler, 6 Ha. (a) Hensmanj>.Fryer,L.E,3Ch. 420. 110. (i) Lord LUford v. Powys Keck, L. {d) Collins v. Collins, 31 Beav. 346. E. 1 Bq. 347 ; Wythe v. Henniker, 2 (e) Mackreth v. Symmons, 15 Ves. My. & K. 635. 329. LIENS. 333 tionfor the transfer of an estate is an engagement or covenant on the part of the purchaser to do some given act, and not the performance of some given act, there the vendor will have no lien. Thus, if A. sell an estate to B. in consideration of B.'s covenant to pay a given price, A. will have no vendor's lien, whereas it- would be just the reverse had the sale been in con- sideration of the same price paid or to be paid by B. (/). The same rule obtains where the consideration is a sum of money to be payable only on the happening of an uncertain event {g), or where the consideration, being indivisible, consists partly of an undertaking which would exclude the lien, and partly of the performance of an act, or series of acts, which would be un- attended with that effect. Thus, where a leasehold was assigned to a company by deed, which stated the consideration to be £6,000, to be paid out of 50 per cent, on all. sums of money to be received from the sale of shares, and 50 per cent, on all moneys borrowed by the company, until the £6,000 was paid off, and the company proving completely abortive, no part of the purchase money was ever paid, it was held that the vendor's lien was excluded by the nature of the contract Qi). So, where the business and assets of the Western Insurance Society were transferred to the Albert Insurance Company by a deed which provided that " in consideration of the transfer of the funds and property of the Western Society, the Albert Company shall pay and satisfy all claims and demands upon the said Society when and as the same shall successively arise, and shall take upon itself all other the liabilities of every description of the said Society," it was held that on the failure of the Albert Company, and its default in satisfying the claims against the Western Society, the latter had no lien on certain lands included in the property transferred, inasmuch as the con- sideration for the transfer consisted partly of an undertaking on (/) Dixon V. Gayfere, 1 De G. & J. (h) In re Brentwood Brick and Coal 655 ; Sug. V. & P. 673. Co., L. R. 4 Ch. D. 562. (g) Clarke v. Eoyle, 3 Sim. 499. 334 FONDED SECUEITTES OR SECURITIES ON PROPERTY. the part of the transferees, and was indivisible (i). The principle upon which a vendor's lien is excluded where the consideration is a mere covenant on the part of the vendee is, that by accept- ing such covenant the vendor on the execution of the contract instantly gets all he has bargained for ; but this principle cannot apply where the lien is expressly reserved. On the other hand, a vendor may expressly renounce a lien to which he would other- wise be entitled, and that by mere word of mouth (k) ; he may also renounce without any express declaration by acts and conduct on evidence a manifest intention that the lien shall not exist (l). Of such acts an important class is constituted by reason of a vendor taking some particular security for his purchase money; how far such security shall operate in defeating the lien depends primarily on the peculiar circumstances of each individual case, and, therefore, no absolute rules on the subject can be laid down. Bearing this observation in mind, we may state it generally that the nature of a security and the object with which it is given are the chief elements which determine its effect in displacing a lien ; that personal securities, such as promissory notes (m), bills of exchange (n), even though with a surety (o), bonds, &c. (p), do not affect the lien, unless proved to be given in substitution therefor, whilst securities on property in many cases raise a strong, and in some a conclusive presumption that the vendor intended to rely on them alone, as in the particular instance of a mortgage of the estate for part of the purchase money, where the lien is held to be waived for the balance (q) ; that where the consideration for an estate is an annuity or other periodical payment with bond or covenant to secure the same, the vendor prima facie retains his lien, but that the transaction (i) In re Albert Life iDBurance Co. ; Abr. 682re. Ex parte Western Life Asaurance So- (w) Teed v. Carruthers, 2 Y. & C. C. ciety, L. R 11 Eq. 164. C. 31. (k) Winter v. Lord Anson, 1 S. & S. (o) Hughes v. Kearney, 1 SoK & Lef. 445. 136. (I) Mackreth v. Symmons, 15 Ves. {p) Hearle v. Botelers, Gary. 35. 329. (g) Capper v. Spottiswoode, Taml. 21 (m) Gibbons *. Baddall, 2 Eq. Ca. LIENS. 335 may be such a family or other arrangement as excludes that prlmd facie right (r). We have said that on the execution of a contract for sale of real estate, the equitable ownership therein becomes vested in the purchaser (s) ; we have now to add that for his deposit (if any), or for any portion, or for the whole, of the purchase money he may pay before conveyance, the purchaser acquires a lien (and that for interest on his purchase money and costs of suit) (t) on the estate in the nature of a mortgage (u), but this lien is forfeited if the contract go off by his own default (x). A purchaser's lien extends in favour of sub- purchasers, and will be enforced against any of the original price that was paid in advance, and is still traceable ; thus, where A. sold an estate to B., and B. sub-sold to C, it was held that G. to the extent of what he had paid B. was entitled to a lien on a fund in Court, which consisted of the deposit B. had originally paid A., by whose default the contract with B. went off (y). The mutual rights and liabilities of vendor and purchaser are of general application ; they are the same whether the parties be private individuals or pubKc bodies. Thus, it is now settled that a vendor to a railway company has the same lien and remedies as an ordinary vendor (z) ; that such lien will be en- forced by sale although the railway be made and open for public use (a) ; that the sale will be inade free from all claims of the public to use the line as a highway (b) ; but an interlocutory injunction to restrain a company from running their trains until the lien is discharged will not be granted, nor according to the most recent decision a receiver appointed (c), though such an (r) Clarke v. Koyle, 3 Sim. 499 ; (y) Aberaman Iron "Works Co. v. Parrott v. Sweetland, 3 My. & K. 655. Wilkes, L. K. i Ch. 101. (s) Ante, p. 329. (z) Wing v. Tottenham and Hamp- (t) Torrance v. Bolton, L. R. 8 Ch. stead Rly. Co., L. R. 3 Ch. 74. 118 ; 14 Eq. 124 ; Tm'ner v. Marriott, [a) Walker v. Ware, Hadham and L. E. 3 Eq. 744. B-antingford Ely. Co., L. R. 1 Eq. 195. (m) Rose W.Watson, 10 H. L.C. 672 ;- (6) Bishop of Winchester v. Mid Wythea v. Lee, 3 Drew. 396 ; Shaw v. Hants Rly. Co., L. R. 5 Eq. 17. Foster, L. R. 5 H. L. 333. (c) Latimer ■D.Aylesbury and Bucking- la;) Ex parte Burrell ; In re Pamell, ham Rly. Co., L. R. 9 Ch. D. 385. L. E. iO Ch. 812. 336 FUNDED SECURITIES OE SECURITIES ON PROPERTY, indulgence was formerly granted (d) ; that the lien is not defeated by a deposit and bond under section 85 of the Lands Clauses Act, 1845, or by the acceptance of a deposit in name of trustees in lieu of statutory deposit, if purchase and compensation moneys exceed the sum deposited (e). Section I. — Part II. Unpaid Vendor's Lien on Personal Property. Between the rights of an owner of real property and the rights of an owner of personal property, there is this fundamental difference : the former are essentially founded on title, the latter on possession ; hence, although an unpaid vendor of chattels is primd facie entitled to a lien derived out of his former owner- ship, he can only claim such lien whilst the chattels are in his own actual or constructive possession, or in the possession of some third party intermediate between him and the purchaser, and cannot, likef the owner of real estate, claim any lien when the actual possession has once pas'sed to the purchaser. Again, the lien of a vendor on real property is purely the creature of equity, and before the Judicature Acts came into force would not have been recognized in a court of law ; but the lien of a vendor on personal property avails as much, and is governed by the same rules at law as in equity. In the case of real estate we found that an unpaid vendor's lien could not prevail against a bond fide purchaser for value without notice in whom the legal interest vested; in the case of personal estate no such doctrine obtains, except in four instances, namely (1) where the goods are sold on credit; (2) under circumstances that estop the vendor from setting up his claim ; (3) under the Factors Acts {d) Munns v. Isle of Wight Ely. Co., (e) Walker v. Ware, Hadham and L. B. 5 Ch. 414 ; Lycettu Stafford and Buntingford Ely. Co. ; Earl Ferrets v, trttoxeter Ely. Co., L. E. 13 Eq, 261 ; Stafford and Uttoxeter Ely. Co., L. K. Pell V. Northampton and Banbury 13 Eq. 526. Junction Ely. Co., L. E. 2 Ch. 100. LIENS. 337 (4) under a bill of lading. With these four exceptions a vendor's lien on personal property binds a purchaser for value without notice, even though the legal interest and the documents of title (if any) are transferred to him or in his favour. " I take this to be settled law, that as long as the vendor of goods remains in possession as vendor of those goods and is unpaid, he has a lien for the unpaid purchase money. I take it that it is quite immaterial that the vendor has parted with the document, which does, or does not, according to law, transfer a title to the goods. He may have given a bill of lading which passes the legal property in the goods, or he may have given a delivery order, which, though it does not pass the legal title or property in the goods, enables the person receiving it to acquire possession of the goods, and acquire a title in that way; but whatever he has done in that respect does not destroy his right of lien as long as he keeps possession of the goods as vendor, and in no other character " (a). From this last-mentioned restriction it is not to he inferred that a vendor who holds possession in a character different from that of vendor will necessarily be deprived of his hen ; it may be that a vendor holds both as vendor and ware- houseman, or as a warehouseman only; in the first case the lien continues to exist unimpaired ; in the second case the lien ceases to exist, but may revive on the insolvency of the purchaser. Thus, where goods were left in possession of the unpaid vendor under an arrangement by which the purchasers were to pay warehouse rent, it was held that as there had been no actual deHvery, the vendor's lien revived on the insolvency of the purchasers (b). The question of vendor's lien cannot arise except where the property in the goods sold passes from the vendor ; it is, there- fore, of importance to observe that documents relating to the transfer of chattels are divisible into (1) documents of title property so called, or those by which the property in the chattels may be passed; and (2) documents which merely authorise a (a) Imperial Bank -o. London and St. (5) Giice v. Richardson, L, E. 3 App. Katharine's Docks Co., L. E. 5 Ch. D. Cas. 319 (P. C). 195. Per Jessel, M.E. 338 FUNDED SECUIUTIES OE SECUKITIES ON PROPEllTy. transfer of the property or possession, or furnish evidence that the same is held in some given manner, or for some given purpose, or that some given act has been done. To the former description of documents belong bills of lading and dock or other warrants : by due delivery and indorsement of these instruments the title and property in the goods represented may be transferred. To the latter description of documents belong delivery orders (c), and wharfingers, warehouse-keeper's, and other certificates {d); these instruments are the mere indicia of property or possession, not the means by which the same may be transferred. Too much stress cannot be laid on the distinc- tion now pointed out, for there is nothing more common in business than to confound the two classes of instruments, and to find out when it is too late that the law and the commercial world view the same matter in very different lights. As an illustration of these remarks, we may adduce the following instance : — A delivery order does not transfer property or con- structive possession in goods that are in the hands of the London and St. Katharine's Docks Company until such order is acted on by the holder obtaining (1) either actual delivery; (2) or an entry of his title in the Company's books ; (3) or such eiitry and a dock warrant : therefore, where A., the purchaser, pledged a delivery order with B., it was held that C, who, as surety for A., was entitled to vendor's lien, having subsequently obtained a duplicate delivery order, and an indorsed dock warrant from the vendor, was to be preferred to B., and that, even though B. had been first to give notice of his claim to the Dock Company (e). Under the general law, then, so long as possession does not pass to the purchaser, an unpaid vendor of goods retains his Ken ; nor is the same defeated by a sale to a bond fide sub'purchaser for value without notice, even where the documents transferring (c) M'Ewan v. Smith, 2 H, L. Cai (e) Imperial BaBk v. London and St. 809. Katharine's Docks Co., L. B. 5 Ch, D, id) Gunu V. Bolokow, Vaughan & Co., 1 9S. L. R. 10 Ch. 501, LIENS. 339 or relating to the transfer of the goods are also handed over. We have next, therefore, to consider how far the general law is modified by the four exceptional cases above specified. 1. In the first, or that where credit is given for the price of the goods, it is clear that the vendor's lien is originally extinguished, but may revive under certain subsequent circumstances. Thus, a vendor, who takes a bill of exchange in payment, loses his lien, but, if the bill be dishonoured, or if during its currency the vendor becomes openly insolvent, the lien thereupon revives (e). It may be doiibtful whether such a lien could prevail against a bond fide sub-purchaser for value without notice who became such in the interval between the original purchase and the dis- honour of the bill or open insolvency of the vendee. 2. The second exceptional case, or that under which a vendor is estopped from setting up his lien, is in general governed by the principles we have elsewhere mentioned (/) ; we may consider the present subject, under the two heads of (1) estoppel by conduct ; (2) estoppel by representations in a document of title. Without pretending to lay down any universal rule, we may state it broadly that a vendor who by his words or conduct wil- fully endeavours to make, and does make, a man believe that his lien is satisfied, or, whatever his intentions may be, acts in such a way as to induce that belief in the mind of any reason- able man, is estopped from setting up his lien against a bond fide purchaser for value who has bought the goods in question under a behef so induced {g). Thus, where A., whose granary adjoined a railway station, sold a certain quantity of barley to B., and B. subsold to C, who thereupon requested the station master to ascertain from the vendor if the contract would be duly carried out ; and the latter, on being shown C.'s letter, replied to the station master, " All right ; when you get the forwarding note 1 will put the barley on the Kne ;" it was held that the vendor by such allegation was estopped from denying that the property (c) Gunn v. Bolckow, Vaughan & Co., (/) Ante, pp. 265, 266, 272, 273. L. E. 10 Ch. 501 : Ex parte Chalmers ; (g) Carr v. London and N. W. Ely. In re Edwards, L. E. 8 CIi. 289. Co., L. E. 10 C. P. 307, 316, 317. z 2 340 FUNDED SECUKITIBS OE SEOUKITIES ON PROPERTY. in the barley, notwithstanding the same was unappropriated, had passed to 0. (h). With regard to estoppel by representations contained in a document of title, it would seem that a vendor is not precluded from insisting on his lien by anything short either of an express statement that his claim is satisfied or of a form of instrument, which is sufficient in law to transfer the pro- perty and by usage passes a title free from any claim on the part of the vendor. Thus, vendors who had delivered the fol- lowing orders for unappropriated goods : " We hereby undertake to deliver to your order indorsed hereon twenty-five tons mer- chantable sheet zinc off your contract of this date," were held not to be estopped from setting up their lien against sub-vendors of the purchasers ( i) ; but where the vendors of iron had issued war- rants in the following form: — " The undermentioned iron will not be delivered to any party but the holder of this warrant. Phcenix Bessemer Steel Company, Limited. No. 88. Dec. 19th, 1874. Stacked at the works of the Phcenix Bessemer Steel Company. The Icicles, Shejfield. Warrant for 403 tons, 2 qrs. 9lbs. steel rails. Iron deliverable (f. o. b.) to Messrs. Gileacl A. Smith & Co., of London, or to their assigns by indorsement hereon ;" — and it was proved that by usage of trade such warrants when indorsed over by a transferee for value, pass the property free from vendor's lien, it was decided that in law also the same exoneration must be allowed (k). This decision estabhshes a principle the application of which must be carefully restricted ; it cannot, it is submitted, be extended beyond documents of title, properly so called ; it deals with a subject the legal hearings of which are in a very unsatisfactory state. (M KnightB V. Wiflen, L. K. 5 Q. B. D. 444. C60. (Tc) Banking Co. of London v. Phoenix (!) FarmeloG r. Bain, L. K, 1 C. P. Bessemer Steel Co., L. E. 5 Oh, D. 205. LIENS. 341 3, The next exceptional case under which a vendor is estopped from setting up his lien is that under the Factors Acts ; these statutes have already engaged our attention in a separate chap- ter (l) ; we have now, therefore, only to supplement our previous observations by a short view of the mode in which their provi- sions affect the subject in hand. Let us begin Avith the three earlier Acts ; neither of these measures had any application to the relation of vendor and vendee, who personally contracted with each other ; thus, neither a vendor (m), who retained the documents of title to goods, nor a vendee (n), to whom they were transferred, could, by a pledge or other disposition of such docu- ments, confer a better title on the pledgee or disponee than what he himself possessed, as neither a vendor or a vendee was intrusted with the documents as agent within the meaning of the Acts ; hence a transfer of the documents by the vendor did not defeat the vendee's ownership, nor a transfer by the vendee the vendor's lien. It was only when a mercantile agent, such as a factor, was intrusted with the documents of title that a statu- tory right might be conferred against which the principal vendor could set up no claim (o). Under the term " documents of title" are included warehouse-keeper's and wharfingers' certificates, delivery orders, and other documents used in the ordinary course of business as proof of the possession or control of goods (p ), as well as the instruments which we have de- scribed as documents of title properly so called (q) : thus, as contrasted with - the general law, a twofold distinction was introduced by the Factors Acts in regard to documents of title. In the first place, they were made capable, in the hands of a mercantile agent, of passing an absolute title to the goods to which they related ; in the second place, they had a more extensive meaning attributed to them. Through these changes [I) Ante, chap. xxvi. (o) Ante, pp. 260, 261. {m) Johnson v. Credit Lyonnais, L. (p) S. 2, 6 Geo. IV. c. 9i ; s. i, 5 &, E .3 C. P. D. 32. 6 Vict. c. 39, ante, pp. 254, 255. (n) Jenkyna v. Usbome, 8 So. K B. (q) Ante, pp. 337, 338. 405. 342 FUNDED SECURITIES OU SECUEITIES ON PKOPEETY. an effect was given to the transfer of a document of title under the Acts similar to the effect of such transfer in business. We now come to the Factors Act, 1877 (r). This measure, the operation of which is restricted to acts done and rights acquired after 10th August, 1877, enables vendors and vendees who are in possession of the documents of title to goods sold to confer the same rights on persons having no notice of the sale, or of any lien or other right of the vendor or vendee, respectively, as mercantile agents, if intrusted with such documents, might confer (s). The statute does not expressly define the meaning it attaches to documents of title, but it is probable that the term will be held to be employed in the same sense as in the earlier Acts. If this be the true interpretation, a uniform system will be established^' under which the important question for persons dealing with vendors and vendees on the faith of documents of title in their possession will be — not what is the nature of the document, but — ^whether all documents relating to the goods are produced, and at what time the dealing tates place. We con- ceive that, as between adverse claimants under vendor and vendee respectively, priority of title must give priority of right, quite irrespective of the general legal operation of the particular instrument on which the transaction is founded. Thus, suppose an unpaid vendor hands to the vendee a' dock warrant and delivery order for the goods sold, and that the vendee pledges, first, the delivery order with A., and then the dock warrant with B., and that both A. and B. make advances bond fide without notice either of the vendor's lien or of any other document of title than the one he himself received, then both A. and B. would have priority over the vendor, and A. would have priority over B. So, if the vendor had himself retained the dock warrant, only handing over the delivery order, and A. became the vendee's pledgee, and B. the vendor's pledgee, the priority of A. and B. as between each other, would depend, cceteris pariMiiS, on which first became a pledgee. It will be observed that, as between W 40 & 41 Vict. c. 39. (s) Ibid., ss., 3, 4, ante, p. 257. LIENS. 343 veaclor and vendee themselves, possession of the documents of title gives no advantage under the recent statute. It is only when a dealing with a third person takes place that the new legislation is called into force. But yet it must not be supposed that no distinction is made between the respective powers of a vendor and vendee in possession of documents of title ; such a vendor has only the powers of a mercantile a^Ont, but such a vendee has, in addition, an express power, by indorsement or delivery of a document of title to a hond fide transferee for valuable consideration, of defeating any vendor's lien or right of stoppage in transitu to the same extent as the transfer of a bill of lading would have It), The precise effect of this provision is not very clear. We submit that it enlarges the powers of a vendee in the following respects : — (1) It enables him to defeat his immediate vendor's lien in cases not within the other pro- visions of the Factors Acts ; (2) it enables him to defeat the hen of any other vendor ; (3) it gives to his due transfer of a document of title a result similar to the transfer of a bill of lading; and this brings us to our next subject of consideration, or the mode in which a vendor's lien may be defeated by such transfer. 4. A bill of lading may be defined to be a contract in writing, whereby the master of a ship acknowledges that the goods therein mentioned have been shipped on board his vessel, and undertakes, if not prevented by the act of God, the Queen's enemies, fire, or accidents of navigation, safely to carry to and deliver such goods at a given place, to a given person, or his order or assigns. Bills of lading are usually made out in sets of three or more counterparts. Of these, the master retains one, the rest — each bearing his signature — are handed over to the shipper or consignor, or other the owner of the goods. By the latter's transfer of a bill of lading, the property in the goods vests in the transferee {u), with what effect upon an unpaid vendor's lien we have here to examine. The ship upon which W S. 5, 40 & 41 Vict. c. 39: ante, («) Lickbarrow i). Mason, 2 T. E. 63 ; pp. 257, 258. 1 H. Bl. 3S7 ; 6 B, 21. 344 FUNDED SECUniTIES OE SECUEITIES ON PEOPEETY. the goods are carried may belong to the vendor, to the vendee, or to a third party. In the first case, as the vendor continues in possession, his lien will be unaffected during the transit ; in the second case, on the other hand, possession vests in the vendee from the time of shipment, and from that moment the vendor's lien is defeated (x) ; in the third case, possession passes to an intermediate shipowner or his agent, the master of the ship, who prima facie holds possession in favour of the vendor, and his lien will, during the transit, continue good, as against the vendee personally. By express agreement, the vendor may, of course, renounce or preserve his claim {y) ; but there is no implied renunciation hj the goods being shipped on a vessel named, though not owned by the vendee (z), even though the master signs bills of lading, making the goods deliverable to the vendee or his order or assigns {a), and though the goods are shipped on account and at the risk of the vendee (6) ; it, in fact, requires a new agreement to make an intermediate carrier hold for the vendee, so as to defeat the vendor's lien from time of the shipment (e). As between the vendor and vendee themselves, the vendor's lien continues to exist until the vendee obtains possession, or the transit is ended, and the unpaid vendor, on the insolvency of the vendee, may at any time during the transit enforce his lien by stopping the goods and resuming their pos- session. This " right of stoppage in transitu" as it is called, presupposes that the right of possession to the goods, but not the actual possession, is vested in the vendee {d) ; therefore, if either condition fail there can be no exercise of the right (e). Many difficult questions arise in determining in different circumstances what constitutes a transitus, and when the same {x) Sohotsman v. Lancashire and (5) Shepherd u. Harrison, L. E. 5 H. Yorkshire Kly. Co., L. E. 2 Ch. 332. L. 116. {y) Turner v. Liverpool Docks Co., (c) Whiteheads. Anderson, 9 M.&W. 20 L. J. Ex. 393. 518 ; Ex parte Cooper ; In re McLaren, (z) Berndston v. Strang, L. E. i Eq. W. N. (1879) 35. 481 ; 3 Ch. 688. (i) Lickbarrow v. Mason, uli siqira. (a) Moakes v, Nicolaon, 19 C. B. (e) Turner v, Liverpool Docks, 6 N.S.290. - Exch. 543. LIENS. 345 terminates. Thus, it does not follow that because the goods are landed on a wharf, or warehoused at the port of destination, or that the vessel has arrived at a port to wait the vendee's orders, that the transitus ' is at an end (/) ; indeed, it may be laid down generally that the transitus continues so long as the ' goods are in charge of a third party, who is contracted with for the purpose of forwarding them (g) ; therefore, where, under an agreement by which the vendor was to have a lien on bills of lading which were to be made out to the purchaser's foreign correspondents or their order, goods were sent by the vendor to a packer, by whom they were then forwarded at the directions of the purchaser to a railway company, and eventually shipped, but the bills of lading were not delivered by the shippers, it was held, on the bankruptcy of the purchaser before the goods reached the port of destination, that a telegram from the vendor ordering the master to deliver the goods to one P. & Co. was an effectual stoppage in transitu (A). To effect such a stoppage, it is necessary that actual notice should be given by the vendor or some person previously authorised on his behalf to the master of the ship, or other intermediate party having actual possession or control of the goods. Notice by an unauthorised person, unless subsequently ratified by the vendor within the time he might himself have exercised the right (i), or notice to the ship- owner, unless forwarded, or which might by reasonable diligence have been forwarded, to the party having actual possession or control of the goods, is insufficient (k), A delivery of part of the goods to the vendee is not a constructive delivery of the whole, so as to defeat the vendor's lien or right of stoppage in transitu, unless the buyer thereby intend to- take possession of the whole (i) ; but the vendee may anticipate the termination of the transit by demanding possession before the voyage is con- (/) Eraser ». Witt, L. B. 7 Eq. 64. (*) Whitehead o. Anderson, 9 M. & Of) Eodger v. Comptoir d'Bscompte W. 518. de Paris, L. R. 2 P. C. 393. {I) Tanner v. Soovell, 14 M. & W. {h) Ex parte Watson, In re Love, 431 ; Bolton t>. Lancashire, &c. Bly, Co. L. E. 5 Ch. D. 35. L. R. 1 0. P. 431. (i) Bird v. Brown, 4 Exch. 786. 3-16 FUNDED SECUEITIES OE SECUKITIES ON PllOPEETT. eluded (m), and the carrier cannot, by prolonging the transit after such demand, save the vendor's rights if not already secured by a previous stoppage {n). To the existence of a vendor's right to stop goods in transitu, it is not requisite that the property therein should ever have been vested in himself. Thus, if A. contract to sell goods then on sea to B., and B, immediately resell to C, to whom the bills of lading are by A, transferred at B.'s request, B. will be entitled to stop the goods on C.'s insolvency (o). Generally speaking, no one but a vendor or independent consignor has a right of stoppage im transitu (p). The same indulgence, however, has been extended to a consignor who ships goods bought in a foreign market and consigned to a home principal, to whom they are sold at a commission (q). So a right analogous to stoppage ioi transitu has been given to a vendor who is under a contract to deliver the goods sold in certain instalments, which are to be paid for pari passu. In such case, default on the part of the purchaser to make any pay- ment will authorise the vendor to suspend delivery of any further instalment until he is satisfied what is due (r). According to the better opinion, the effect of a stoppage in transitu is not to rescind the contract ; but further than that no precise doctrine as to its operation on the rights of parties can be laid down (s). We have hitherto been engaged with a vendor's rights, as between himself and his immediate vendee. Let us next, there- fore, consider the vendor's rights as between himself and sub- vendees, or other persons claiming under the original vendee. As against volunteers, the vendee's trustee in bankruptcy (subject to the order and disposition clause) and purchasers or incumbrancers for value, with notice that the goods are unpaid for, the vendor's lien avails, and may be enforced in the same (m) Whitehead v. Anderson, uU (5) Frise v. Wray, 3 E. 93. supra. (r) Mx paHe. Chaimere, L. E. 8 Ch. (») Bird V, Brown, ubi supra. 289. . (0) Jenkyns v. UslDorne, 8 Sc. N. E. (s) Bloxam v. Sandars, iB.SfC. 948; 522. Wentworth v. Outhwaite, 10 M. & W. {p) Hathesing v. Laing, L. E. 17 Eq, 451 ; Ex parte Stapleton ; In re Nathan, 02 ; Siffken v. "Wray, 6 E. 371. L. E. 10 Ch. D. 586, LIENS. 347 manner as against the vendee himself, and that whether or not the bill of lading has been passed to the transferee ; as against a bond fide (t) purchaser or incumbrancer for value {u), without such notice, to whom the bill of lading is duly transferred by the vendee's indorsement and delivery, the vendor's lien and right of stoppage in transitu, if not previously enforced, are absolutely or pro tanto extinguished, and cannot be set up on the subsequent bankruptcy of the original vendee {x). A pro tanto extinguishment of the vendor's rights occurs where the hand fide transferee is an incumbrancer whose incumbrance does not exhaust the value of the goods, and if such incumbrancer have a collateral security, as where he is pledgee of other goods besides the bill of lading, the vendor, having duly exercised his right of stoppage, will be entitled to the benefit of marshalling, so as to have the other goods first applied to the discharge of the incumbrance (y). We have already seen that a bill of lading was made assignable in the hands of a consignee, without, however, interfering with the vendor's rights as they existed prior to the statute (z), and that a past debt as well as a present advance was good as a valuable consideration to support a transfer against a vendor's claims (a). This result must be care- fully borne in mind when dealing with the Factors Acts. It should also be observed that as between transferees of different sets of bills of lading, priority of title prevails, even though the transfers be subsequent to the landing of the goods at a suffer- ance wharf, and that the subsequent transferee has also a dock warrant (h). (t) Cumming v. Brown, 9 B. 514. Coventry v. Gladstone, L. R. 6 Eq. 44. («) Chartered Bank of India, Aus- (2) Ante, p. 302. traiia, and China v. Henderson, L. R. (a) Leask v. Soott, L. R. 2 Q. B. D . 5 P. C. 501. 376. {x) Liokbarrow v. Mason, uli supra. (6) Meyerstein v. Barber, L. R. 4 H. (y) In re "Westziathus, 5 B. & Ad. L. 317 ; 2 C. P. 38, 661. 817 ; Ex parte Alston, L. R. 4 Ch. 468 ; 348 FDNDED SECURITIES OE SECURITIES ON PEOPEETY. Section II. Liens in Particular Trades and Professions. The liens treated of in the preceding section grew out of an original ownership on the part of the person claiming to exercise the lien : the liens to be treated of in the present section do not in any way depend on ownership, but are purely founded on possession ; hence, two points in which these merely possessory are distinguished from vendor's liens — they are lost by loss of possession ; they confer a mere right, to retain, not, unless in exceptional cases, a right to realise, apply, or otherwise deal with, the property affected (a). "The very notion of a lien," it has been said in a case on this subject, " is that, if the person who is entitled to the lien, for his own benefit, parts with the chattel over which he claims to exercise it, he is guilty of a tortious act, He must not dispose of the chattel so as to give some one else a right of possession as against himself" (h). A possessory lien, however, may be acquired and held by one's duly authorised agent as well as by oneself; in either case the possession must be bond fide and in the ordinary course of business, and not obtained on terms inconsistent with the claim set up. As a hen does not, as a rule, prevent the person exercising it from bringing an action to recover the debt for which it is held, so neither does it entitle him to charge for any expense he may have been put to in retaining a chattel to enforce payment : thus, it was held that a shipwright who had a lien on a ship for repairs could not be allowed anything for the dock charges which he had incurred in keeping the ship (c). Unlike vendor's lien on real estate (d), a possessory lien is lost by taking a security for a claim in (a) Thames Iron Works Co. v. Patent (c) British Empire Shipping Co. v. Derrick Co., 29 L. J. Oh. 714. Soames, E. B. & E. 353 ; 30 h J. Q (i) Muffiner v. Florence, L. R. 3 B. 229. Q. B. D. 489. {d) Ante, pp. 334, 335. LIENS. 349 respect of which it would otherwise be allowed ; hence, a solicitor cannot retain the papers of a client from whom he has received a promissory note, mortgage, or other security for payment of his costs (e). Liens, it has been said, exist (I.) by common law; (II.) byusage ; (III.) by agreement (/) ; they may, to whichever of those classes they belong, be either general or specific. All possessory liens, other than those created by agreement of the parties, are fre- quently described as common law liens. In the above classifica- tion, a lien existing by common law only includes such liens as are given to persons who, as carrjdng on certain trades, are bound by the common law to receive the goods of third persons in the course of their business ; a lien existing by usage includes all liens given by the usage of particular trades other than common law liens, as just mentioned. I. Of common law liens there are two kinds : 1, the lien of carriers, (1) whether by land (2) or by sea; 2, the lien of inn- keepers. (1) By the common law, carriers are either common carriers — i.e., persons who undertake, if they have room, to convey any goods and chattels of a given description that may be brought to them for reward from any one given point to any other given point (ff) — or private carriers, i.e., persons who convey either pas- sengers or, under a special agreement, convey goods (h). Private carriers are not bound to receive goods for conveyance, nor are they, like common carriers, insurers of the goods they carry (i), nor is it quite settled if they are entitled to a lien thereon for the price of carriage. It would seem, however, that such a lien ought to be established, inasmuch as there is no legal distinction between the status of private carriers and that of wharfingers and other bailees for hire, whose lien has been admitted (Ic). If admitted, (e) CoweU v. Simpson, 16 Ves. 275 ; L. & S. W. Ry. Co., L. R. 7 Ex. 337. Blunden v. Desart, 2 D. & W. 423. (/») Aston v. Heaven, 2 Esp. 533 ; (/) Naylori;. Mangles, 1 Esp. N. P. Wright v.. Mid. Ry. Co., L. E. 8 Ex. E. 109 ; per Kenyon, Ld. 437. ig) Coggs V. Bernard, 2 Ld. Raym. (i) Soaife v. Tarrant, L. R. 10 Ex. 918 ; Liver Alkali Co. v. Johnson, L. 437. E. 7 Ex. 267 ; 9 Ex. 338 ; Kendall r. {Ic) Angell, Law of Carriers, s. 66. 350 FUNDED SECURITIES OR SECURITIES ON PROPERTY. the lien of a j)nvate carrier would be similai to that of a common carrier, which, in the absence of express agreement or recognised usage enlarging his rights, is only a special lien, extending, however, over every article conveyed under the same agreement for the full amount of carriage (l). A common carrier has no lien in his capacity of warehouseman (m), unless he is expressly constituted such, in which case he will have the rights and liabilities of that character (n) ; but as long as the goods carried have not been actually delivered out of his possession or control, they are held by a carrier as such, notwithstanding he may have transferred them to a wharf or warehouse (o). By 11 & 12 Vict. c. 18, 16 & 17 Vict. c. 107, s. 60, and 25 & 26 Vict. c. 6S, ss. 68 — 78 (p), special provision has been made for preserving freighter's lien on cargoes landed at a wharf or warehouse within the United Kingdom. Irrespective of these statutes, it would seem that the master of a vessel miky, on default of the consignee to take delivery, land and warehouse goods consigned to a foreign port, and still retain his lien for freight (q). A carrier may refuse to convey goods, unless the price of carriage be paid in advance (r) ; but, if he refrain from insisting on that demand, he cannot sue for the price until he has performed his part of the contract by due delivery of the goods at their proper destination (e). To a carrier is given a special property in the goods he carries, and it has been laid down that a carrier's lien will avail against the real owner of goods that have been bailed by a wrongful possessor (t) ; but it may be questioned if such a lien would now be allowed (u). il) Chase V. Westmore, 6 M. & S. 8 C. P. 227. 180. (r) Wyld v. tickford, 8 M. & W, (m) Great Northern By. v. Bwaffieldi 443. L. K. 9 Ex. 132. (s) Osgood v. Groning, 2 Camp. 466 ; («) Mitchell f. Lancashire and York- Duthie v. Hilton, L. K. 4 C. P. 138 j Bhire Ey. Co., L. K. 10 Q. B. 2S6. Cargo ex Argos, L. R. 4 A. & E. 13. (o) Bourne v. Gatliff, 5 So. 667 ; 3 («) Yorke Vi Grenaugh, 2 Ld. Kaym. Sc. N. K. 1 ; 8 So. N. R. 604 ; 11 CI. 866. & P. 45. {u) Angell, Law of Carriers, 4364 at {p) The Energie, L. R. 6 P. C. 306. seq. ; Betut v> Hartley, L. E. 7 Q. B. (S) Mars-le-Blattch i/. Wilson, L. E. 594. LIENS. 351 (2) The relations of a carrier by sea are usually much more com- plex than those of a carrier by land ; for, besides consignor, con- signee, and carrier, who are ordinarily the only persons concerned in a contract to carry by land, there may also be a separate charterer where the contract is to carry by sea. If there be no separate charterer, the only lien that can arise is for the freight directly due to the shipowner, and the only contract in question is that constituted by the bill of lading, which may or may not specify both the amount and the parties by whom the freight is to be paid (x). For the amount so specified, or if no amount be specified, for a reasonable amount, the shipowner or his agent, the master, may detain the goods carried, unless the lien be excluded by the nature of the contract, as where the shipowner stipulates that freight shall not be paid until after delivery of the cargo (y). And here it is important to observe that a sum of money payable for the carriage of goods before (z) the arrival of a ship at her port of discharge is not freight (a) in the legal meaning of the term, nor can freight be earned unless the goods are carried safely to their destination; therefore, in neither of these events can any lien be claimed (6). If the ship be chartered, then a distinction must be taken between a charter which amounts to a demise transferring the ownership, and a charter transferring only the use of the vessel. In the former case, the master and crew become the servants of the charterer, who, through them, obtains possession of the vessel, and the shipowner accordingly can have no lien on the cargo. In the latter case, the master and crew continue the servants of the shipowner, who, through them, remains in possession of the vessel (c), and as against the charterer, he will have a lien on the cargo for the hire of the vessel (d), but as against a holder for value of a bill (a;) Weguelin v. Cellier, L. R. 6 daS. 636 ; 2 d. P. D. 183 ; ante, p. 1S2. H. L. 286; Ex parte dooper; In re (6) Bensoui^.dhapman, 2H.L.0.696. McLaren, W. N. (1879) 35. (c) Sandeman v. Scurr, L. K. 2 Q. {j/) Foster v. Colby, 28 L. J. Ex. 81. B. 86 ; Newberry v. Colvin, 1 01. & F. (2) Kirchuer v. Venus, 12 Moo. P. C; 283. AcatoB i: Bums, L. R. 8 Ex. D. 282. {d) Sayille v. dampion, 2 B. & Aid, («) Keith V. Burrowes, L. R. 2 App. 503. 352 FUNDED SKCUEITIES OR SECURITIES ON PROPERTY. of lading, only for the amount due thereby for freight, unless the holder when he took the bill had notice of the charter-party (e). As agent for charterers, a master Avill have a lien for freight similar to the lien he has when the shipowner is himself the freighter. The terms of a charter-party are frequently incorpo- rated into a bill of lading, so that the rights of the several parties depend upon the joint construction of the two instruments. In some charter-parties it is provided that the shipowner shall have a lien on the cargo, not only for actual freight, but also for dead freight — that is, for damages for short loading. To make such a stipulation effectual as against the holder of the bill of lading, it is necessary that he should have had notice thereof, and that the precise amount of damages be ascertainable (/). In addition to his right of lien, the shipowner is entitled to sue the charterer for the hire of the vessel, but a. cesser of the charterer's liability is often agreed upon as soon as a cargo is loaded (g). 2. Innkeeper's lien depends on the fact that the goods come into the innkeeper's possession in his character of innkeeper as belonging to a guest (h) ; hence, an innkeeper receiving the goods of a third person as part of his guest's goods has a lien thereon («'), unless he knows the goods are not his guest's, and does not receive them as such (k). As the lien can only exist where the relation of innkeeper and guest is established, it is necessary to explain the sense in which the law understands those terms. An innkeeper is a person who maintains a house where the traveller is furnished with everything he has occasion for while on his way, and wherein the owner holds out he will receive all travellers and sojourners who are willing to pay a price adequate to the sort of accommodation provided, and who come (e) Kern v. Deslandes, 10 C. B. N. D. 247. S. 205. (h) Smith v. Dearlove, 6 0. B. 132. (/) McLean and Hope v. Fleming, (i) Threfall v. Berwick, L. B. 7 Q. B L. K. 2 H. L. So. 128 ; Gray «. Carr, 711. L. K. 6 Q. B. 522. (i) Broadwood v. Granara, 24 L. J ((?) French v. Gerber, L. P.. 2 0. P. Ex. 1. LIENS. 353 in a situation in which they are fit to be received (l). A lodging- house keeper, on the other hand, makes a contract with every man that comes, whereas an innkeeper is bound, without making any special contract, to provide lodging and entertainment for all at a reasonable price (m). Under the term innkeeper, then, are included the owners of hotels and other places where persons have a right to be received and fully accommodated as guests for a reasonable remuneration; but no place where food and drink only, or where beds only are furnished, is an inn in legal contemplation ; hence, eating, coffee, and public houses, taverns, restaurants, and cafds, are seldom inns, because, whether called so or not, they rarely afford sleeping accommodation (n). And even in the case of an inn proper, a person who does not take his meals but only sojourns there under an express contract for lodging for a certain time is not a guest, but merely a lodger (o); but it is otherwise if he actually have or simply pay for his diet in the house (p). Once constituted, the relation of innkeeper and guest entitles the former to a lien on aU goods brought upon his premises by the latter for debts incurred in that relation; such lien is specific, though it obtains in favour of every part of a debt which consists of several items. Thus, an innkeeper cannot claim to retain his guest's goods for a general balance which is due for entertainment supplied on former occasions, but only for the entertainment supplied on the particular occasion when the goods come into his possession ; on the other hand, an inn- keeper's lien upon any given article is not limited to a sum he may have a right to charge in respect of that article, but extends to the entire debt in which that suni is included ; hence, an inn- keeper was allowed a lien on a carriage not only for its own keep, but also for the general bill incurred on the same occasion (I) Thompson v. Lacy, 3 B. & A. 283. (m) Doe v. Laming, 4 Camp. 77 ; The (ro) lUd. As to the liability of inn- Queen v. Rymer, L. E. 2 Q. B. D. 136. keepers, see Calye's Case, 8 Eep. 82 a, (o) Dansey v. Richardson, 3 E. & B. 26 & 27 Viot. c. 41 ; Spice d. Bacon, 144 ; Holder v. Soulby, 8 C. B. N. S. 254. li. E. 2 Ex. D. 463. (i>) Parker v. Elint, 12 Mod. 255. A A 354 FUNDED SECUKITIES OR SBCUKITIES ON PROPERTY. by the guest who brought it (q). At common law, an innkeeper's was a mere possessory lien : hence, if an innkeeper sold or parted with possession to a stranger of goods subject to his lien, he forfeited such lien and was guilty of a conversion for which the owner might recover damages to the full value of the goods,% The law, however, has been changed by the Innkeepers Act,| 1878 (r), which came into force on 8th August, 1878 : it provides f that — The landlord, proprietor, keeper, or manager of any hotel, inn, or licensed public house shall, in addition to his ordinary lien, have the right absolutely to sell and dispose by public auction of any goods, chattels, carriages, horses, wares, or merchandise which may have been deposited with or left in the house he keeps, or in the coachhouse, stableyard, or other premises, appurtenant or belonging thereunto, when the persoaf depositing or leaving such goods, chattels, carriages, horsesj'l wares, or merchandise shall be or become indebted to the said innkeeper either for any board or lodging or for the keep and expenses of any horse or other animals left with or standing at livery in the stables or fields occupied by such innkeeper; but* no such sale is to be made until the goods have been six weeks ' in the innkeeper's charge or on his premises without the debt having been paid or satisfied, nor for any other or greater debt than one for which the innkeeper could set up a lien at common law ; moreover, the innkeeper is at least one month before the sale to advertise notice thereof in one London and one country newspaper, of which the latter circulates in the district where such goods or some of them have been deposited or left, and is bound on a sale taking place to hand over on demand to the person who deposited or left the goods any surplus proceeds after payment of his own debt, and of the costs and expenses of the sale. II. At common law a workman, employed to do work on goods and chattels delivered into his possession, has a hen (g) Mulliner v. Florence, L. K. 3 Q. M 41 & 42 Vict. c. B. D. 484. LIENS. 355 thereon for his charges of the work done, and that whether those charges be defined by express agreement or arise by im- phcation of law. Such lien is merely possessory and specific ; it, however, obtains almost universally, the exceptions being Hmited to cases like that of agistment (s), where the nature of the employment as admitting an immediate resumption of possession by the employer is inconsistent with a right to retain in the employed. Workman's lien, then, is not confined to the mere artisan who effects some physical labour on goods delivered iato his hands, but is allowed in favour of business meii generally, who in the course of their avocations receive the goods of others to be dealt with by them for reward. In certain trades and professions, however, usage has amplified the ordinary workman's lien by making it a general lien, which in some instances entitles the holder to realise and apply the property affected to the discharge of the debt for which he claims to retain. Until a general lien is recognised as part of the Law Merchant, strict evidence of its existence must be produced by the party claiming its benefit; but once the Courts have enforced a usage so far as to render it part of the Law Merchant, a general lien conferred by such usage must be judicially noticed (t). The following are the most important classes of persons in whose favour a general lien is established by usage : — Aucti-oneers (u), bankers, insurance brokers (x), factors (y), warehouse and dock keepers, wharfingers (z), packers (a), calico printers (b), and solicitors. An aiictioneer, factor, or insurance broker, has a general lien on the proceeds of goods of which he has disposed in the way of his business, as well as on the goods themselves, and he is entitled to apply such proceeds in liquida- tion of his claims ; the same is true of stock brokers, who are (s) Jackson v. Cummins, 5 M. & W. (z) Ex parte Ludlow; In re Hancock, 342, 349 ; Judson v. Etheridge, 1 C. & W. N. (1879) 65 ; Moot v. Pickering, M. 743. ' L. R. 8 Oh. D. 372. (t) Brandao v. Barnett, 12 01. & F. {a) In re Witt ; Ex parte Shubrook, (ii)Drinkwater«. Goodwin, CoTvp. 251. L. K. 2 Oh. D. 489. (x) Fisher «. Smith, L.K. 4 App.Oas.l. (5) Weldon v. Gould, 3 Esp. 268. iy) Kruger v. Wilcox and Anr. 252. A a2 356 FUNDED SECURITIES OR SECURITIES ON PROPERTY. proved to hare a general lien by local custom (c) ; but in these cases the general lien only warrants an application of the proceeds of a duly authorised sale, not the sale itself; hence, if the authority to sell be expressly revoked, the auctioneer, factor, . or broker cannot by virtue of his Ken dispose of the goods after such revocation (d), but a factor has been allowed to proceed with the sale after notice of the bankruptcy of his principal (e). In- surance brokers have a Hen for their general balance, commission, and charges on the policies they effect (/) ; but they cannot sell the same to liquidate their claims, though if the moneys become payable and pass through their hands, they may deduct what is due to them. Warehouse and dock keepers, wharfingers, and packers have no power to realise or apply the proceeds of goods over which they have a general lien ; they have merely a right of retainer ; it is otherwise with bankers, whose rights and those of solicitors demand a more detailed examination. The general lien of bankers is part of the Law Merchant, and is to be judicially noticed like the negotiability of biUs of ex- change (g) ; it enables bankers not only to retain, but also to realise and apply all funds and securities of which they become possessed in their business character in satisfying whatever claims they have as bankers against the customer to whom such funds and securities belong (h) ; and so far is the privilege carried that although a bank having several branches is only bound to honour the cheques of a customer at the particular branch where he keeps his account (i), yet, if a customer have several accounts at several branches, the bank is entitled, and that without notice, to set off the debt he owes at one against the credit he has at the other and to refuse to cash his drafts upon' the latter except for any balance that may then stand in his name (k). A banker (c) Jones V. Pepperoome, 28 L. J. (o) Brandao v. Bamett, 12 01. & F. Ch. 158. 787. (d) Smart v. Sanders, 5 C. B. 895. (h) Ante, pp. 227, 228. (e) Eobsou V. Kemp, 4 Esp. 232, 236. (*) Priuoe v. Oriental Banking Cor- As to reputed ownership of goods in poration, L. E. 3 App. Gas. 326. hands of factor, see In re Fawous ; Ex (i) Garnett ii. M'Kewan, L. E. 8 pwrte Back, L. E. 3 Ch. D. 795. Ex. 10. ( f) Fisher v. Smith, avjpra. LIENS. 357 cannot claim a lien on funds or securities with which he is intrusted for some purpose altogether extraneous to banking business ; thus, he has no lien on muniments merely deposited with him for safe custody (l) ; and, conversely, if he be a mere gratuitous bailee, he will not be liable for any loss that may befall the bailor, except such as occurs through his gross negligence (m). It would be different if, besides being bailee, the banker were intrusted with documents in order to perform some duty for which he was to be paid ; in that case the question would be whether the duty was properly within the scope of a banker's business, and if the answer were affirmative, a banker's hen would exist : thus, a banker's lien was allowed on railway shares, the certificates of which were deposited by a customer with his bankers, to whom he allowed a commission for collecting the dividends as they became due (n). Banker's lien cannot attach to funds which a customer at the time of lodgment expressly appropriates to some specific object (o) ; but this rule only applies as between the customer and his own banker, not as between the customer of a country banker and the latter's London correspondent, without notice of the appropriation ; hence, the London correspondent may retain all remittances except such as he knows are appropriated for his general balance against the remitting bank (p). The effect of opening an account described as a trust account is to appropriate all sums paid into such account in favour of the cestui que trust, so as to exclude any lito for a balance due from the trustee in his personal capacity (q), except to the extent, if any, to which he may be entitled to share in the fund beneficially (r). A solicitor has a lien for his costs on three different subjects, Tfiz. : — 1. On books and documents received in his profes- sional capacity. 2. On the fruits of a judgment, decree, or order (I) Ante, p. 228. D. 139. jm) Giblin v. McMullen, L. E. 2 P. 0. (p) Johnson v. Eobarts, L. E. 10 Ch. 317. 605. (») In re United Service Co. ; John- (q) Ex parte Kingston ; In re Gross, ston's Claim, L. E. 6 Ch. 212. L. E. 6 Ch. 632. (o) Kinnaird v. Webster, L. E. 10 Ch. (r) Bailey ii. Finch, L. E. 7 Q. B. 34. 358 FUNDED SECURITIES OR SECURITIES ON PROPERTY. obtained by his exertions. 3. On property recovered or preserved through his instrumentality on which he has obtained a charge under 23 & 24 Vict. c. 127, s. 28. 1. As an almost universal rule, a lien -for his general balance is given to a solicitor on all papers of his client which come into his possession in his professional capacity (s), nor can anything short of special agreement reduce such lien to a special lien (t) ; thus, deeds deposited by a client with his solicitor for a par- ticular purpose, and then suffered to remain in his hands, become subject to a general lien (m). So, the solicitor of a trustee in bankruptcy has a lien on all documents which are the fruits of his own labour or expense, and a new trustee cannot compel a delivery up of the documents until the solicitor's costs are paid (x) ; yet a liquidating defendant may be ordered to produce documents, notwithstanding a lien claimed thereon by his former solicitor (y), nor can a solicitor embarrass a suit by keeping papers which belong to an estate that is being ad- ministered by the Court, nor use that means of payment (z). No lien can be claimed by a solicitor which would be incon^ sistent with his duty towards his client; thus, a solicitor who acts for a mortgagee or for both mortgagor and mortgagee, can set up no lien (unless expressly reserved) on the title and mortgage deeds as against the mortgagee, even for costs due by the mortgagor of which the mortgagee had notice, for it is the first business of a solicitor acting for a mortgagee to see that his client obtains a valid security, and that is incompatible with a detainer by the solicitor of the muniments upon which such security depends (a): It has been held, however, that a solicitor employed by the holder of shares in a liquidating company does not forfeit his lien thereon by accepting a retainer (s) Sheffield v. Eden, L, R. 10 Ch. L. E. 4 Ch. D. 129. D. 291 ; Ex pa/rte Newland, L. E. 4 Ch. (j/) Vale v. Oppert, L. B. 10 Ch. 340. D. 515. (z) Belamy v.FiTench, L. E. 8 Ch. 918. (t) Ex parte Sterling, 16 Ves. 258. (a) In re Snell ; A Solicitor, L. E. 6 (u) Ex parte Pemberton, 18 Ves. 282. Ch. D. 105 ; In re Mason and Taylor, (x) Ex parte Yalden ; In re Austin, L. E. 10 Ch. D. 729. LIENS. 359 from tte transferees of the shares, but is entitled to hold the same for his whole costs (&) ; and, as against a mortgagor, a solicitor acting for him alone, or for both him and mortgagee, is clearly entitled to a lien on the title deeds ; thus, a solicitor who held the deeds of a mortgaged estate, was allowed to retain the amount of his costs out of the purchase money of the equity of redemption, which was sold by direction of the mortgagor's trustee in liquidation, and the proceeds paid into the solicitor's hands (c). This last case exemplifies the rule that a solicitor receiving moneys of his client in his professional employment is allowed to deduct therefrom the amount of any costs that may be due to him by such client ; hence, out of alimony decreed to a married woman in a matrimonial suit and suffered to pass through his hands, a solicitor may retain costs disallowed on taxation as against the husband but allowed as between solicitor and client; -to prevent this result the client may insist that the alimony shall be paid directly to herself in person (d). A soHcitor will be ordered to deliver up deeds of his client when his lien is adequately covered by other deeds ; thus, a solicitor to whom £4000 costs were due, and holding deeds representing £20,000 worth of property, was required to deliver up deeds that represented £10,000 worth of the property (e). So, on an order for taxation, under 6 & 7 Vict. c. 73, s. 38, it is dis- cretionary with the Court to order a delivery up of papers (/). There are many cases also where a solicitor may be compelled to produce, though not to deliver up, documents upon which he has a valid lien; such, for example, are legal proceedings in which the rights of third parties cannot be adjusted without an inspection of the documents in question (g). A solicitor, more- (5) Greneral Share Trust Co. v. Chap- 146. man, L. K. 1 C. P. D. 771. (/) Ex pwrte Jarman, L. R. 4 Ch. D. (c) In re Messenger ; Ex pa/rte Cal- 835. vert, L. E. 3 Ch. D. 317. (g) Simmonds v. Gt. Eastern Ey. Co., (d) Ex pa/rte Sarah Bremner, L. E. L. E. 3 Ch. 797 ; In re South Essex 1 P. & D. 254 ; E. 94 ; In re. AUen ; Estuary and Eeclamation Co. ; Ex Davies v. Chatwood, W. N. (1879) 44. parte Paine and Layton, L. K. 4 Ch. (e) Du Boison v. MaxweU, 11 W. N. 215. 360 FUNDED SECUKITIES OR SECURITIES ON PROPERTY. over, can claim no higher rights than his client ; he cannot retain the papers of third persons — a principle which prevents retainer of a deceased' client's will (h). The town agent of a country solicitor has no lien against the client, not even for what is due to him as agent in the cause (i) ; but he has a lien to the extent to which the client is indebted to the country solicitor, and an order may be made to tax the bills of both country solicitor and town agent, and that the client pay any balance that may be due by him to the latter. A solicitor forfeits his lien by taking a security for his costs (k), or by making himself a trustee of a fund from which he would have a right to retain (T), or by discharging himself, but not by being discharged by his client (m). Where a solicitor declines to cany on a suit, he discharges himself (n) ; so, where he becomes bankrupt ; where, on the other hand, the client takes away his business or becomes bankrupt, the solicitor is discharged by the client (o) ; where, however, the bankrupt client is a firm, one of whose members is also a member in the solicitor's firm, the latter will still be discharged by the client (p). 2. A solicitor has a specific lien on the proceeds of a judg- ment obtained through his exertions in favour of his client for all costs accruing to him in the course of the proceedings, and is entitled to have such proceeds pass through his hands. The lien does not amount to an equitable assignment of the proceeds, nor constitute a trust fund of which the judgment debtor and the judgment creditor's solicitor are the respective trustee and cestui que trust (q) ; but it is yet protected by the Court, so that if {k) Georges i>. Georges, 18 Ves. 294; Kobbins u. Goldingham, L. K. 13 Eq. Balch V. Symes, 1 T. & K. 87. 440. (i) Ward v. Hepple, 15 Ves. 297 ; (o) In re Faithful ; In re London, Moody V. Spencer, 1 T. & B. 87 ; 2D. Brighton and S. Coast Ey. Co., L. E. 6 & B. 6. Bq. 325 ; Lord v. Wormleighton, Jac. (k) Blunden v. Desart, 2 D. & W. 580. 405 ; Cowell v. Simpson, 16 Ves. 275. (p) In re Moss, L. R. 2 Eq. 345. (!) In re Clark; Ex -parte Newland, (g) Mercer a Graves; L. K. 7 Q. B. L. R. 4 Ch. D. 515. 499 ; Barker v. St. Quintin, 12 M. & W. (m) Twort V. Dayrell, 13 Ves. 195. 451. (n) Creswell v. Byron, 14 Ves, 271 ; LIENS. 361 plaintiff and defendant collude and conspire to deprive the soli- citor of his costs, an order will be granted calling on one or other to pay same or deliver up any security given by way of compromise (r). It is otherwise where there is no fraud and the result is doubtful ; as where plaintiff and defendant bond fide compromise a case in which the unsuccessful party has procured an order for a new trial (s). A defendant's solicitor is entitled to a lien on costs ordered to be paid by plaintiff to defendant (t), and the same holds where the plaintiff is a company against whom judgment has gone, and that notwithstanding s. 163, 25 & 26 Vict. c. 89 (u). A. fund that is subject to a solicitor's lien may be assigned over, and the assignee will take according to his priority ; thus, where a country solicitor mortgaged his lien -to R. to secure £350, part of his costs paid by R. at the request of the client, it was held that R.'s claim must be satisfied out of a fund in Court, pajrment of which by an existing order had been directed to the solicitor's town agent (x). 3. The 23 & 24 Vict. c. 127, s. 28, provides as follows : In every case in which a solicitor shall be employed to prosecute or defend any suit, matter, or proceeding in any court of justice, it shall be lawful for the Court or Judge, before whom any such suit, matter, or proceeding has been heard, or shall be depending, to declare such solicitor entitled to a charge upon the property recovered or preserved, and upon such declaration being made, such solicitor shall have a charge upon or against, and a right to payment out of, the property, of whatsoever nature, tenure, or kind the same may be, which shall have been recovered or pre- served through the instrumentality of any such solicitor, for the taxed costs, charges, and expenses of or in reference to such suit, matter, or proceeding; and it shall be lawful for such Court (r) Ex parte Games, 33 L. J. Ex. (a) In re Bank of Hindustan, China, 317 ; Gould V. Davies, 1 C. & J. 415. and Japan ; Ex pa/rte Smith, L. R. 3 (s) Ex parte Morrison, L. E. 4 Q. B. Ch. 127. 453. (x) Cockayne v. Harrison, L. R. 15 (i) Ex pa/rte Cleland ; In re Davies, Eq. 298 ; Peatfield v. Barlow, L R 8 L. R. 2 Ch. 808 j Pringle v. Gloag, L. R. Eq. 61. 10 Ch. D. 676. 362 FUNDED SECURITIES OR SECURITIES ON PROPERTY. or Judge to make such order or orders for taxation of or for raising and payment of such costs, charges, and expenses out of the property as to such Court or Judge shall appear just and proper, and all conveyances and acts done to defeat or which shall operate to defeat such charge or right shall, unless made to a bond fide purchaser for value with possession, be absolutely void and of no effect as against such charge or right, provided always that no such order shall be made by any such Court or Judge in any case in which the right to recover pay- ment of such costs, charges, and expenses is barred by any statute of limitations. The above provision is couched in the most sweeping lan- guage ; its judicial interpretation has been equally sweeping : thus, not only on actual property recovered, whether real (on which, apart from this enactment, a solicitor can claim no lien {y) ) or personal, but also on property preserved or in general benefited by his exertions, a solicitor may now obtain a charge for the costs of the judicial proceedings incurred (z). Hence, a charge has been allowed in a suit which resulted in removing an incumbrance, which though entirely valueless threw a cloud upon the title to the property charged (a) ; so, where the result was to establish an infant's title and obtain an order for par- tition (6) ; so, where the client was a married woman, and the property was an annuity settled to her separate use by her hus- band, whose action to set aside such settlement was dismissed (c). The right to obtain a charge, however, only obtains as against the property of a client, not as against that of third persons • therefore the successful solicitor of a tenant in tail cannot claim to bind remaindermen (c?) ; nor can a suit only relating to an easement — e.g., obstruction of ancient lights — be said to be a (y) Shaw ■». Neal, 6 H. L. C. 600. (6) Pritehard v. Roberts, L. E. 17 (s) Scholefield v. Lookwood, L. K. 7 Eq. 222 ; Baile v. Baile, L. K. 13 Eq. Eq. 80 ; Tht PhUlipim, L. B. 1 A. & 497. E. 309 ; Bulley v. BuUey, L. E. 8 Ch. (c) Tumley v. Desborough, L. E. 12 D. 479. Eq. 115. (a) Jones v. Frost ; In re Fiddey, (d) Berrie v. Howitt, L. E. 9 Eq. 1. L. E. 7 Ch. 773. LIENS. 363 suit in which property is recovered or preserved, even though a mandatory injunction for pulling down buildings be refused (e). If a suit be stopped or compromised by a client, the right of a solicitor to obtain' a charge will depend on the nature of the suit (/). A fund brought into Court in a subsequent action will be liable to be charged with costs incurred in a prior action in which an order for payment into Court was made (g) ; and the assignment of a 'special fund for the discharge of costs does not disentitle a solicitor to a charge on funds in Court (h). Priority to a charging order will be given over a mortgage by a client of a subject in litigation, although the charging soli- citor have perused and approved of the mortgage on behalf of his clients (i) ; so, a charging order of a judgment creditor's solicitor will have priority over an earlier garnishee order attaching the judgment debt (k), and payment by the judg- ment debtor under a garnishee order of which the judgment creditor's solicitor has no notice, will be no discharge of the judgment as against him (I). A charging order is made in the branch of the Court to which the suit was attached (m,) ; but it cannot be made in regard to a right to recover payment which is barred by any statute of limitations (n), a restriction which does not apply to a solicitor's lien on documents (o) or on the proceeds of a judgment (p). (e) Foxon v. Gascoigne, L. E. 9 Ch. 495. 654. {k) Birohall v. Pugiu, L. R. 10 C. P (/) Twynam v. Porter, L. K. 11 Eq. 397 ; The Jeff Dams, L. K. 2 A. & E. 1, 181 ; Pinkerton v. Easton, L. R. 16 Eq. (l) The Leader, L. R. 2 A. & E. 314. 490. (m) Heinrioh I). Sutton; /rare Fiddey {g) Catlowi;. Catlow.L.R. 2 0. P. D. L. R. 6 Ch. 805; Higgs v. Sohrader 362. L. R. 3 C. P. D; 252. [h) Pilcher v. Arden; In re Brook, (n) 23 & 24 Vict. u. 127, s. 28. L. R. 7 Ch. D. 318. (o) In re Broomhead, 16 L. J. 355. (i) Eaithfull v. Ewen, L . R. 7 Ch. D. (p) Higgins v. Soott, 2 B. & Ad. 413 364 FUNDED SECURITIES OR SECUKITIES ON PROPEKTY. Section III. Maritn/me Idens. A maritime lien may be defined as a right specifically binding a ship, her furniture, tackle, cargo, and freight, or any of them, for payment of a claim, founded upon the maritime law, and entitling the claimant to take judicial proceedings against the property bound to enforce or to ascertain and enforce satisfac- tion of his demand ; thus, a salvor has a maritime lien on the property saved for such an amount as a Court exercising admiralty jurisdiction shall award. Maritime are distinguished from all other liens in these two chief particulars ; they are in no way founded on possession or property in the claimant ; they are exercised by taking proceedings against the property itself in a form of action styled an action in rem (a), and from this and their secret nature they closely resemble the species of security known to Koman law under the name oi Hypotheca (b). Interest, if any allowed, and the costs of enforcing a claim for which a maritime lien exists will be included in such lien (c) ; the claim is usually cognisable only in the Admiralty Division, the rules of which are now in force in the High Court of Justice and Court of Appeal generally (d). A maritime lien is universal; that is, it attaches to every part of the res to the fullest extent ; as long as a plank remains, it is subject to the same claim as the vessel to which it belonged (e). It continues to attach to the res whatever transfers or dealings take place (/), until extinguished either by payment or by acceptance of bail, or other security, on the part of the person entitled (g), or by {a) The Glasgow Packet, 2 W. Rob. Co., L. E. 2 Ex. D. 467. 312, 313 ; The Repulse, 4 N. C. 170. (e) The Neptune', 1 Hagg. 238. (5) Dig. xiii. (/) The Bold Bucdeugh, 3 W. Rob (c) The Mwrga/ret, 3 Hagg. 240. 229. {d) 38 & 39 Vict. c. 77, s. 18. See (g) The Kalamazoo, 15 Jur. 886 ; The The General Steam Navigation Co. v. WUliami Mwrry, 2 Hagg. 136. The London and Edinburgh Shipping LIENS. 365 judicial sale (h), or loss or destruction of the res, or by an agree- ment to postpone payment (i), or by want of diligence of the creditor (A); but it is not affected by mere delay in enforcing the claim (l), or by a sale of the res to a bond fide purchaser for value without notice (m), or by an agreement to refer the amount of the claim (n), or to receive a certain sum therefor (o), or by a receipt given in ignorance (p), or by knowledge in the claimant of an intended sale (q), or by a release of the owner (r). A person entitled to a maritime lien is also in general entitled to a personal remedy for the amount of his claim, and if the res be exhausted before such claim is satisfied, he may seek to make good the deficiency in a personal action against the owners or other parties liable (s). The claims for which maritime liens are given are the follow- ing:— 1. Bottomry and respondentia. 2. Salvage. 3. Damage. 4. Wages. 5. Pilotage. 6. Towage. A person who supplies necessaries or materials to a foreign ship is also entitled to a maritime lien for his charges, and our Courts have now jurisdiction to entertain all suits for enforcing the same (t) ; but no maritime hen exists for necessaries supplied to an English ship (u), nor is there even an equitable lien (A) The Nymph, Swa. 86. of Cases, 362. (i) The Soyal Arch, 1 Swa. 269. (p) The Silver Bullion, 1 Spinks, 74 (k) The Sa/racen, 6 Moo. P. C. 56 ; 2 (g) The Repulse, i Notes of Cases W. Eob. 451. 170. (I) The Mellona, 5 Notes of Cases, {r) The Chieftain, 1 Bro. & Lush 215 462. (s) Tlie Orient, L. R. 3 P. C. 696. (m) The Suropa, 1 Bro. & Lush. 97, {t) 3 & 4 Vict. c. 65, s. 6 ; 24 Vict 98. c. 10, BS. 4, 5 i The Anna, L. E. 1 p! (re) The Purigi/ma Concepdon, 7 Notes D. 253. of Cases, 150. . (u) 24 Vict. c. 10, s. 4; The Two (o) The WilMam Imshvngton, 7 Notes EUens, L. E. 4 P. C. 161, 366 FUNDED SECURITIES OR SECURITIES ON PROPERTY. against a purchaser with notice of a claim for such necessaries supplied before the purchase {x). 1. Bottomry is a contract in writing — usually in the form of a bond — whereby the master of a ship, being otherwise unable to obtain the necessary means for the prosecution of the voyage, hypothecates the ship or the ship and cargo to secure a principal sum advanced and maritime interest or premium thereon, such security to be void if the ship fail to reach her destination {y). For the validity of such an instrument, it is absolutely essential, in the absence of the ship or cargo owner's prior consent, that there should be (1) an inevitable physical necessity for the things for which it is given, as repairs or provisions, without which it would be impossible to proceed {z) ; (2) an impossibility of obtaining what was required on the personal credit of the master or owners (a) ; (3) that every effort to communicate with the latter should be made before the contract is entered into (6) ; (4) a maritime risk (c) ; (5) a written contract purporting to be founded on maritime risk, and stating the principal and premium and the nature of the voyage {d). Not only may the master or substitute master enter into a contract of bottomry, but also the owner ; the owner, however, is, unlike the master, debarred from so contracting in the countiy where he resides (e); Where the object is to raise money to pay the master's debts, a bottomry bond will be invalid (/) ; so, if it merely secure a past debt due to some third person, but not if to secure a past debt and a present substantial advance, except where there is some interested relation between the parties ; in which case, as, for instance, (x) The Aneroid, L. K. 2 P. D. 189. The Ka/mdk, L. R 2 P. C. 505 ; Klein- {y) Doctrine of constructive total loss, woart v. Cassa Maritima of Genoa, L. as in marine assurance, does not apply K. 2 App. Gas. P. C. 156. to the subject of Bottomry. The Great (c) Stainbank v. Sheppard, 13 C. B. Pacific, L. K. 2 P. C. 516. 418 ; The Three Sisters. (z) The Nelson, Brown, 1 Hagg. 169 ; {d) The Zodiac, Scott, 1 Hagg. 320 ; Messina v. Petrooochino, L. E. 4 P. C. The Great Specific, supra. 144. (e) The Duke of Bedford, Morris, 2 (a) Heathom v. Darling, 1 Moo. P. Hagg. 295. C. 5 ; The Ida, L. K. 3 A. & E. 542. (/) Smith v. Gould, 4 Moo. P. C. (6) The PommtM, L. K. 3 P. C. 199 ; 21. LIENS. 367 where the obligee is the agent of the insurers or consignee of the cargo, the bond will be invalid to the extent of the past debt (g). Respondentia is a contract by which cargo only is hypothecated to secure a loan. In other respects, it is governed by the same principles as bottomry (h). 2. The term salvage has a twofold meaning : it signifies both the act or service of rescuing the property of others from damage or loss at sea, and the reward or compensation to be given for such service {i). It is in the first of the above senses that salvage must be understood when it is said to confer a maritime lien. We shall accordingly deal with the nature of the services which give rise to such lien, and the "extent to which the latter prevails. The subject of a salvage service may be the rescue of human life (k), or of a vessel, or of a vessel's cargo ; but there can be no claim to a maritime lien for the reward of a service which is unsuccessful in saving any subject (l), or which is rendered where there is no cause for danger or distress (m), or rendered by the crew or others, whose duty it is to perform such service (??). Subject to these conditions, every salvage service confers a maritime lien against the property saved, though it is competent to the parties to exclude such lien by a voluntary agreement ascertaining the amount of compensation to be given to the salvors, the effect of which agreement will be to bind the owners of the ship, cargo, and freight, and their respective executors and administrators (o). A seaman, however, is debarred from enteringinto an agreement to abandonhis right to salvage (p), except where by the terms of the agreement the ship to which he belongs is to be employed on salvage service (q). With this exception, the Court is very much indisposed to set aside any ig) The Hebe, 2 W. Eob. 412. (I) The Chetak, L. E. 2 P. C. 205. (h) Cargo ex Sultcm, 5 Jur. N. S. {m) The Union, 3 Jur. N. S. 462. 1060. (») The Neptune, swprra. {i) The Thetis, 3 Hagg. 48 ; The (o) Ss. 491, 497, 17 & 18 Vict. Neptune, 1 Hagg. 227, 236. 104. (h) S. 458, 17 & 18 Vict. c. 104 ; s. 9, (p) lUd., s. 182. 24 Vict. 0. 10 ; s. 59, 25 & 26 Vict. c. (q) S. 18, 25 & 26 Vict. o. 63. 368 FUNDED SECURITIES OR SECURITIES ON PROPERTY. honest agreement, and where there is any doubt, its rule is to adhere to the agreement (r) ; but an agreement which is clearly inequitable will be set aside (s). In estimating the value of a salvage service, the circumstances which have most weight are the enterprise and promptitude of the salvors, the danger and distress from which the property saved was rescued, the labour and skill employed and the danger incurred by the salvors, the value of the property saved, the time spent in the service, the loss of profit to the salving vessel (t), and the possibility of its being answerable to the owners of the cargo for deviation (u). The amount of compensation, however, to be awarded for salvage is a matter of discretion on the part of a Judge of First Instance, and with such discretion a Court of Appeal will not interfere unless satisfied that the sum is so grossly excessive or deficient as to work a manifest injustice (x). Between the quantum of remuneration and the value of the property salved there is in general this relation, the larger the property salved the smaller the proportion of the remuneration {y). For the saving of life a relatively higher reward is given than for any other salvage service ; moreover, the claim of a Kfe salvor has priority over all other claims for salvage, and such claim will now attach, and that rateably, as a maritime lien on whatever portion of a ship or cargo is rescued (z), even though the life salvor had no part in saving the property (a); and where no property is saved, or what is saved is insufficient to meet a claim for life salvage, a reason- able sum may be awarded to the salvor out of the Mercantile Marine Fund by the Board of Trade (6). A vessel in distress may be rescued by the exertions of persons on board herself, or of persons On board some other vessel. In the first case, as a general rule, there can be no claim for salvage, (r) The Theodore, Sw. Adm. 351. The Englamd, L. R. 2 P. C. 253 ; The (s) The Medina, L. R. 1 P. D. 272. True BMe, L. R. 2 P. C. 250. (t) The 'CkelM, supra ; The Louisa, 3 (y) The Amerique, L. R. 6 P. C. 468. W. Rob. 99. (s) Ss. 468, 459, 17 & 18 Vict. c. 104. (u) The Sir Ralph Abercronibie, L. R. (a) Cargo ex Schiller, L. E. 2 P. D. 1 P. C. 454. 145. ((C) The Chetak, L. R. 2 P. 0. 205 ; (h) S. 459, 17 & 18 Viot. o. 104. LIENS. 369 for it is the duty of all on board, passengers as well as captain, pilot, and crew, to use every ordinary endeavour to secure the safety of the vessel ; in the second case, as a general rule, there will be a claim for salvage to be apportioned between the owners and the master and crew of the salving vessel. Where the salving vessel is one of her Majesty's ships, such ship obtains no right to remuneration (c) ; but her commander, officers, and crew have the same rights as the master and crew of a merchant vessel (d), but no proceedings to enforce those rights can be taken without the previous consent in writing of the secretary of the Admiralty (e), and, where the salvage is rendered abroad, the amount of remuneration is to be fixed by a consular officer, and, on the master of the vessel salved executing a bond binding the owners of such vessel, her freight, and cargo, and their respective heirs, executors, and administrators for payment of the amount so fixed, the right to detain the vessel salved is to cease (/). Within the boundaries of the Cinque Ports a claim for salvage is prosecuted in the manner prescribed by 1 & 2 Geo. IV. c. 76. In other ports of the United Kingdom, if the claim does not exceed £200, the question is to be referred to the arbitration of two Justices of the Peace, to whom, by consent, a claim for any amount may also be referred (g) ; or if the value of the property does not exceed £1,000, the claim is to be referred to two Justices of the Peace specially appointed for the purpose, or selected by the parties, or to a stipendiary magistrate, or County Court Judge (h), from the decision of any of whom an appeal lies respectively to the Admiralty Division in England or Ireland, or to the Court of Session in Scotland, provided the sum in dispute exceed £50 (i). In-all other cases, claims for salvage are pursued in the Admiralty Division of the High Court in England or (c) S. 484, 17 & 18 Vict. c. 104. (/) Ihid., ss. 486-493. (d) Cargo ex Woosung, L. R. 1 P. I). (ff) Ihid., s. 460. 260. (A) S. 49, 25 & 26 Vict. u. 63. (e) S. 485, 17 & 18 Viot. c. 104. (i) S. 464, 17 & 18 Vict. c. 104. B B 370 FUNDED SECURITIES QR SECURITIES ON PROPERTY. Ireland, or in the Court of Session in Scotland (k). The receivers of Admiralty Droits are empowered to receive the amount of an ascertained sum for salvage when not exceeding £200, about the apportionment of which there is a dispute (l), and also to detain any salved property until the maritime lien thereon is discharged by payment or adequate security (m). 3. When by collision or otherwise one vessel sustains damage from another, the right to compensation and to a maritime lien consequent thereon will depend upon whose side the blame for the accident is properly fixed. If the injury be due to vis major, both sides are exculpated, and the injured party has no redress; if both parties be in fault, they contribute equally in making good the whole mischief done — a rule which now prevails in all Divisions of the High Court (o) ; if the injury be solely due to the injured party, he can have no redress ; if solely due to his opponent, then the latter is responsible for the whole mischief, and a maritime lien for compensation will arise as against the injuring vessel, except so far as restricted by Act of Parlia- ment (p). The maritime lien given for damage attaches to a vessel and freight, but in no case does it bind the cargo (q). Since the 1st June, 1863, certain regulations for preventing collisions have been in force. These regulations form a code of laws prescribing the lights to be carried, the fog signals to be used, and the rules to be observed in steering and sailing (r). Owners and masters of vessels are bound to obey the regulations, and a breach of them leading to damage to person or property is to imply a wilful default on the part of the person in charge of the erring vessel (s), and, where a collision takes place, a ship infringing the rules is to be deemed in fault (t), except where a {Jc) Ibid., ss. 460, 476. (p) The WooOrop, Sims, 2 Dods. Ad. (I) IMd.,B. 466. 85. (m) lb-id., B. 468. (g) The Victor, Lush. 72. (») The William lAndsay, L. R. 5 P. ()•) 25 & 26 Viot. c. 63, s. 25, Table C. 338, 343 ; The Marpesia, L. K. 4 P. C. C. 219. (s) Ibid., B. 27. (o) 36 & 37 Vict. .;. 66, s. 25, sub-s. 9. {t) Ibid., s. 28. LIENS. 371 departure from the rules is necessary (it). As an illustration of the construction put upon the ahove regulations, we may cite a case where it was held that an omission to exhibit proper lights is immaterial, if it be clearly proved that such omission was not the cause of, or did not in any way conduce to, a collision ; but that the onus prohandi in such case lies on the vessel not showing proper lights (x). A steamer will be held culpable in a collision with a sailing vessel, if it appears it was in the power of the former to have avoided the collision (y). A maritime lien for damage can only obtain on a ship to the extent the shipowner is liable for the wrong done (z) ; hence, any exemption of the shipowner is a total or pro tanto exemption of the ship. At Common Law the shipowner is liable, not only for his own acts and conduct, but also for those of the master and crew, who are his servants (a) ; but his liability in the latter case has been limited where there has been no actual fault or privity on his part as follows : for loss of life or personal injury, to £15 per ton of the ship's tonnage; for loss to ships, goods, merchandise, or other things, to £8 per ton of the ship's tonnage (b), such tonnage to be understood as registered tonnage in sailing- ships, and gross tonnage in steamers (c). In the case of loss of life or personal injury, the Board of Trade may institute pro- ceedings as plaintiff, making the shipowner defendant. By these proceedings a sum not exceeding £30 for each case of loss of life or personal injury may be assessed as compensation, on payment of which sum the shipowner will be exonerated from any further claim (d). There are many instances in which the law requires a ship to be navigated by a duly licensed pilot. In all such instances, so long as the ship is under compulsory pilotage, and no contributory negligence of the master or crew is proved, the pilot in charge is solely responsible, and the («) 36 & 37 Vict. 0. 85, s. 17 ; 37 & (s) The Flying Fish, Br. & L. 436. 38 Vict. c. 52, B. 1; The Lady Down- (a) Hibbs v. Eoss, L. R. 1 Q. B. 543 shire, L. K. 4 P. D. 26. (5) S. 503, 17 & 18 Vict. c. 104. (a) The Fenham, L. E. 3 P. 0. 212. (c) S. 54, 25 & 26 Viet. c. 63. ly) The City of Antwerp and The (d) Ss. 507, 508, 511, 512, 17 & 18 Fnedmck, L. B. 2 P. C. 25. Vict. o. 104. B B 2 372 FUNDED SECURITIES OK SECURITIES ON PROPERTY. owners are exempt from the consequences of his neglect or default (e), and this exemption will obtain, though damage accrue, within the territory of a foreign state, by whose law a lien against the ship is given, notwithstanding compulsory pilotage (/). So, if the ship be in tow of a steam-tug having a duly licensed pilot on board {g); but there is no exemption where the pilotage is merely voluntary Qi). 4. There are two classes of persons to whom a maritime lien for wages is given — sailors and masters of ships ; the rights of each are now principally determined by statute. The legal right of a seaman to wages begins either at the time he actu- ally commences work, or at the time agreed upon for such com- mencement {i) ; from that time he is bound faithfully to fulfil the contract of service he has entered into (/c) ; provided he so does his duty, he will be entitled to be paid for his labour whether or not freight be earned (J,), and for such payment he will acquire a lien on the ship and freight (m) which he cannot by any stipulation forego {n). A seaman's wages are forfeited by loss or capture of the ship before the end of the voyage except to the extent of wages accrued due before such loss or capture, but a recapture, and eventual arrival at the port of destination cancels the forfeiture (o) ; wages are also forfeited by the seaman's misconduct, mutiny, unwarranted desertion {p), or by proof that in case of wreck or loss of the ship he did not exert himself to the utmost to save the same, the cargo, and stores (g). If, however, a seaman in the discharge of his duty becomes disabled, or falls sick, and thus becomes incapacitated for work, he will nevertheless be entitled to wages (r) ; so, if he (e) S. 388, 17 & 18 Vict. o. 104 ; Tlie (I) S. 183, 17 & 18 Vict. o. 104. Oalaba/r, L. E. 2 P. 0. 238 ; The lona, {m) As to discharge, payment, and L. E. 1 P. C. 426 ; The City of Cam- savings banks. Ibid., as. 170—180. bndge, L. B. 5 P. C. 451 ; The Hankow, (») lUd., s. 182. W. N. (1879) 60. (o) Hemaman v. Bawden, 8 Burr. (/) The Halley, h. R. 2 P. C. 193. 1844. Ig) The OcetmWave, L. B. 3 P. C, 205. {p) Bergstrom v. Mills, 3 Esp. 36. (A) The lion, L. R. 2 P. 0. 525. (?) Ss. 183, 243, 17 & 18 Vict. o. 104. (i) S. 181, 17 & 18 Vict. c. 104. {r) Laws of Oleron, art. 6 ; Chandler (h) The Blahe, Hadden, 1 W. Bob. v. Grieves, 2 H. Bl. 606, n. (a). Ad. 73 ; The Mm-y Ann, 9 Jur, 94. ■ LIENS. 373 leave the vessel in consequence of her employment in an illegal enterprise (s) ; so, he may in some instances claim a propor- tionate amount of wages even where he has been himself to blame for not performing the contract (t). Suits for wages not exceeding £50 are prosecuted before two Justices of the Peace actiug for the place at which the service has terminated or at which the seaman has been discharged, or at which any person upon whom the claim is made is or resides ; such suits may also be prosecuted before a stipendiary magistrate (u) ; no suit for seaman's wages under £50 can be instituted in a Superior Court of Record in her Majesty's dominions, unless the owner is adjudged bankrupt or declared insolvent, or unless the ship is under arrest or is sold by the authority of such Court as afore- said, or unless two justices refer the case to be adjudged by such Court, or unless neither the owner nor master is or resides within twenty miles of the place where the seaman is discharged or put ashore (x). The same restriction formerly applied to suits in the Court of Admiralty ; but the Admiralty Division may now entertain an action for any amount (y) ; the plaintiff, however, is disallowed his costs unless he recovers more than £50, and may incur a similar penalty if the claim do not exceed ^150, for which he might sue in the County Court (z). The master has now the same rights for wages as a seaman (a) ; he is also given a lien for his disbursements (b) actually and necessarily incurred (c). Before suing for wages or disburse- ments a master is bound to furnish his accounts ; otherwise he will not be entitled to his costs (d). 5. Pilotage is either voluntary or compulsory ; in the former case the pilot's remuneration is fixed by the agreement of the (s) Burton v. Pinkerton, L. R. 2 Ex. (a) Ibid., s. 191. 340. (6) S. 10, 24 Vict. c. 10 ; The Mm-y (t) Button V. Thompson, L. R 4 Ann, L. R. 1 A. & E. 8. C. P. 330. (c) The Feronia, L. E. 2 Ad. & E. 65 ; («) Ss. 188, 519, 17 & 18 Vict. c. 104. The Riga, 3 Ad. 516. {x) Ibid., s. 189. (d) The Fleur de Lis, L. K. 1 Ad. & iy) 24 Vict. c. 10, =. 10. Ecc. 49. (z) 31 &32 Vict. c. 71,8.9. 374 FUNDED SECURITIES OK SECURITIES ON PROPEKTY. parties — in the latter, by a certain scale of charges issued by the particular authorities having jurisdiction over the local mari- time traffic. Unless forfeited by misconduct, a maritime lien is given for such remuneration ; and the master of a vessel who refuses the services of a duly qualified pilot who produces his licence, incurs severe penalties where the pilotage is compul- sory (e). A pilot is bound to exercise all proper skill in the management of the ship, and he, therefore, cannot claim any extra reward where by ordinaiy circumstances navigation is rendered difficult; a storm, however, or other casualty over which the pilot has no control, may place the vessel in danger beyond what it is his duty to meet ; in that event a rescue from the peril by the pilot's means will convert the pilotage into a salvage service, and entitle him to a salvor's compensation (/). 6. Towage is a service voluntarily accepted by the master of a ship, the remuneration of which is fixed by agreement of the parties, and for which a maritime lien is given to the owner of the tug. The effect of an ordinary contract for towage is not that the vessel towed shall under all circumstances be conveyed from one given point to another, but that every reasonable effort and amount of skill will be employed to effect that object. Hence, as in the case of pilotage, an extraordinary peril not contemplated by the contract and not caused by the tug, may convert a towage into a salvage service, with the more beneficial rights thereto annexed {g). It may not be amiss here to say a few words on priority of maritime liens, which for this purpose may be resolved into two classes : (1) Liens given as a reward for benefit conferred — in- cluding bottomry and respondentia, salvage, wages, pilotage, and towage ; (2) Liens given as reparation for wrong done, including all cases of damage {h). In the first class, liens generally rank m the inverse order in which they attached on the res — ^that is, (c) 17 & 18 Viot. c. 104, ss. 333, 356, {g) The Minnehaha, 15 Moo. P. C. 357, 360, 380, 381 ; 35 & 36 Vict. c. 73, 133. ■i. 9. (h) Macklachlan Merch. Shipp. 2nd (/) The Frederick, 1 W. Kob. 17. ed. 651. LIENS. 375 a later is prefeiTed to an earlier lien — on the principle that the last service performed is the immediate means of preserving the res for all — salvam fecit totiuspignoris causam (i) ; but seaman's wages are allowed priority over all other claims of this nature (k), and after them comes a master's claim for wages and disburse- ments, except to the extent he has made himself liable as master (l). In the second class, liens rank in the direct order in which they attached on the res, and between the two classes claims have preference according to priority of attachment, except where this preference is modified by statute or by eqviitable considerations. A lien for damage has priority over all antece- dent beneficial liens (m), and over a subsequent bottomry lien except to the accretion of value the bottomry loan conferred upon the res (n) ; so, perhaps, in the case of a foreign but not of a British ship a lien for subsequent wages would be postponed to a prior lien for damage (o) ; it is otherwise with regard to salvage, pilotage, or towage liens, for these have preference over a prior damage lien (p). Section IV. Miscellaneous Liens. There are many kinds of lien which do not fall under either of the three preceding sections, and though of a multifarious character may be roughly classified as liens given (l)by statute (q), (2) by argreement (r), and (3) by equity. Of liens belonging to (i) The Sydney Cove, 2 Dods. Ad. 7. {p) The Aline, 1 W. Eob. Ill, 188. (i) The Union, Lush Ad. 138 . (g) Wallis v. London & S. W. Ey. Co. [1) The Edmard Oliver, L. R. 1 Ad. L. K. 5 Ex. 62. 379; The Jenny lA/nd, L. R. 3 Ad. (r) /» re Collie ; ^ajsarte Manchester 532. and County Bank, L. R. 3 Ch. D. 481; (to) The Benares, 7 Notes of Cases In re Pavy's Patent Pelted Eabric Co., Supp. 50, 54. L. R. 1 Ch. D. 631 ; Wiltshire Iron Co. (re) Hannert). Bell, 7 Moo. P. C. 267, v. Gt. W. Ry. Co. L. R. 6 Q. B. 101, 285. 776. (o) TU Umder Flor, 4 Jur. N. S. 172. 376 FUNDED SECUBITIES OR SECURITIES ON PROPERTY. either of the first two classes it is sufficient to say that their nature and incidents will depend upon the particular enactment or stipulation by which they are created ; it is only of equitable liens, therefore, that we at present propose to speak. Such a lien usually arises by reason of an implied trust ; thus, if a person entitled to property deliberately stand by and allow another to expend money thereon under a mistaken notion of right, the latter will have a lien on the property for the amount so expended (s), but there will be no lien if both parties are fully aware of the real state of the title {t). So, a person who has only a partial interest in a fund as a tenant for life or annuitant will have a lien on the corpus for salvage, that is, for such expense as has been necessarily incurred by him for preserva- tion of the fund, hence, where shares were held in trust for A. for life, remainder over, A.'s executor was allowed a lien on the shares for JE468, which she advanced out of her separate estate at the request of the trustees to pay a call upon the shares, although the trustees might have thereon raised the requisite sum (u). So, a remainder man was given a lien on all that remained of a life estate for interest which had accrued during such estate and which he had paid off {x) ; so, where advances for the improvement of a clubhouse were made with the authority of the managing committee, a lien for such advances was allowed on the property of the club {y). But where a legacy was to be forfeited unless the legatee conveyed away his estate, it was decided that no lien attached on the estate when conveyed for the unpaid legacy {z). In the case of fraud or breach of trust an equitable lien will bind the property so long as traceable in the hands of volunteers or pur- chasers for value with notice of the fraud or breach of trust (s) Unity Joint Stock Mutual Bank- (as) Howliu v. Sheppard, I. R. 6 Eq. ing Association v. King, 27 L. J. Ch. 253, 497 ; Marshall v. Crowther, L. E. 585. 2 Ch. D. 199. (t) Rennie v. Young, 27 L. J. Ch. (y) Minnitt v. Lord Talbot, 1 L. E. 753. Ir. 143. (u) Todd V. Moorhouse, L. R. 19 Eq. (2) Barker v. Barker, L. R. 10 Eq 69. 438. ^' LIENS. 377 but will not affect a legal interest in a trustee's bankruptcy trustee (a). An equitable lien, such as we have now given examples of, is a chai-ge which the holder of the lien is entitled to have realised out of the property affected ; in that respect, and also because it ■ exists independently of possession, it resembles vendor's lien on real estate (b). (a) Fox V. Buckley, L. R. 3 Ch. D. (6) Ante, p. 329. 508. BOOK III. MISCELLANEOUS. CHAPTEK XXXI. COLLATERAL SECURITIES. The various securities upon which money is advanced may be resolved into (1) those which directly affect specific property, as mortgages, pawns, debentures, and assignments, and (2) those which merely confer a right of action or execution against some given party, as bills of exchange, bonds, guarantees, life policies, and judgments. Where a debt or loan is secured by an instru- ment directly affecting property, no further security need be required, if the property be amply sufficient to cover the charge and the same be well created, though even in that case it is usual to have some concurrent safeguard ; thus, a mortgage debt is generally secured not only by a conveyance of the property mortgaged, but also by a personal covenant, undertaking due payment. A fortiori, will a plurality of securities be deemed advisable by a lender or creditor who has nothing but the per- sonal credit of a borrower or debtor to look to ; thus, we have seen that insurance companies, on making an advance on a policy, insist that the borrower, besides assigning or depositing the same to or with them, shall also enter into a bond, and, that as a rule, with sureties to pay the amount advanced with inte- rest thereon, and to keep up the policy (a). Hence it will be (a) Ante, p. 87. COLLATERAL SKOURITIES. 379 fitting here to say something of collateral securities, by which we understand any two or more instruments securing the same debt ; though the term is also sometimes applied to any person or persons jointly liable with another for the discharge of any obligation ; we use the phrase in the former signification only. A particular and important branch of the subject now in hand has already engaged our attention in guarantees, which obviously fall within the above description ; the treatment of that special matter will be supplemented in the more general observations we are about to make. In order that two or more instruments should constitute collateral securities, it is necessary that each should continue operative so as to support a separate action ; any one of several conjoint securities may cease to be enforcible by action, either by that which renders all the securities inoperative, or by that which renders that particular security inoperative. The relation between a debt, obligation, or engagement, and a security for its payment or performance, is that of principal and accessory ; therefore, according to the maxim omne accessoriwrn cedit principali, the discharge of a debt is a discharge of the security or securities given or outstanding therefor (b). A debt is regularly and properly discharged by the debtor paying his creditor the amount due at the time and in the manner agreed upon by the parties or prescribed by law ; the other modes in which a debt may be discharged are by release, by accord and satisfaction, and by substituted contract. By a release, properly so called, the creditor discharges his debtor Avithout receiving payment or other satisfaction ; to be effective the release must be under seal (c), but this formality is not required to render good a discharge — sometimes also called a release — granted by the creditor for new and valuable consideration. Such a dis- charge, however, is more correctly styled a discharge by way of accord and satisfaction, and is subject for its validity to the con- (6) Duffield V. Elwes, 1 Bligh, N. S. (c) Co. Litt. 264 b. ; Bao. Abr. Ke- 497. lease (A). 380 MISCELLANEOUS. ditions we shall state presently. No particular form of words is necessarj' to constitute a release ; any expression ■which shows that the creditor has entirely renounced or forgiven the debt or acknowledged satisfaction thereof will operate as a release (d), and a general covenant not to sue thereon will have the same effect (e), though the result is different if there be a covenant not to sue only for a limited time (/). A release under seal avails as a discharge of any debt whatever ; thus, even a debt of record may be so discharged (g). If several persons be jointly liable to the same debt, a release thereof to any one is a release to all (h); but the release of an ostensible partner who may be sued jointly with the debtor, but is not liable to contribution, is no release of the debtor (i) ; but the creditor may release to one of his joint debtors, expressly reserving all his rights against the others (j), and such express reservation will be good so as to confine the effect of the release to the particular debtor (k), though, even in that case, the transaction only amounts to a cove- nant not to sue on the part of the creditor, inasmuch as the other joint debtors, if compelled to discharge the debt, are en- titled to a rateable contribution from their co-debtor (I). Besides releases under seal which are expressly made by act of a party, releases may also be by operation of law, as when a credi- tor makes his debtor his executor (m) ; the office so conferred works at Common Law a release of the debt, but equitable tri- bunals, formerly, and, now, all branches of the Supreme Court, do not suffer a debt to be thus technically extinguished, unless that result appears to have been intended by the testator ; on the other hand, it is a general rule that, if a release be invalid (d) Hickmot's Case, 9 Co. 52 b. (i) Ex pwrte G-ood ; In re Annitage, (e) Deux V. Jeffries, Cro. Eliz. 352 ; L. R 5 Ch. D. 46. Aylifi V. Scrimshire, 1 Show, 46. IJ) Solly v. Forbes, 2 B. & B. 38. (/) Ford u. Beech, 11 Q. B. 852 ; (h) Price o. Barker, 4 E. & B. 760 Webb V. Spicer, 13 Q. B. 886. 777. (g) Barker v. St. Quentin, 12 M. & W. (I) Ante, p. 105. 441. (m) Co. Litt. 264 b. Dorchester v. (A) North V. WakeEeld, 13 Q. B. 536, Webb, Sir W. Jones, 345. 541. COLLATERAL SECTJBITIES. 381 at law, it is also invalid in equity, for here equity follows the law; consequently a release to be effectual must comply with the technical requisites of the Common Law, and must also be in keeping with the principles of equitable jurisprudence (n). Another mode in which a release is said to take place by opera- tion of law is by merger ; of this we shall speak later on (o). Accord and satisfaction consists in ■ an arrangement by the parties to a contract differing from the original stipulations, and entered into and accepted in lieu thereof; such arrangement is made for valuable consideratiou, but, in order to operate as a discharge of a liquidated debt, must satisfy certain conditions of which the following are the most important ; (1) whatever be the nature of the debt, an arrangement, if it is to be for pajmient, must not be for payment of a less sum than that due, unless some new consideration be added, otherwise such arrangement as nudum pactum cannot affect the original demand (p) ; (2) the accord and satisfaction may either consist of mutual promises given and accepted in satisfaction, in which case the discharge is presently complete (q), or of a promise given and its perform- ance accepted in satisfaction, in which case there is no discharge until due performance of such promise (r) ; (3) if the debt be other than a simple contract debt, there can be no discharge thereof by accord and satisfaction unaccompanied by other for- mality; a discharge can only be by matter of as high a nature as the debt itself, thus a bond debt cannot be discharged by parol agreement (s), but, if there be valuable consideration, an action on the bond would be answered by an equitable defence setting forth the transaction (t). ■ The discharge of a debt by payment, release, or accord and satisfaction, will be total or partial according to the nature and extent of the quittance, and, according as that discharge is total or partial, any securities held for the debt are absolutely or (n) Strong v. Bird, L. R. 18 Eq. 315. (r) Evans v. Powis, 1 Exch. 601. {o) Fast, p. 3S5, et seq. (s) Clarke «. Henty, 3 Y.& Coll,'l87. (p) Cumber v. Wane, Str. 426, 1. Sni. For more concerning accord and satis- Lead. Cas., p. 341, 7th ed. faction, see Peyton's Case, 9 C. 77. (?) Gabriel v. Dresser, 15 C. B. 622. («) Lawderr.Peyton,I.R.ll,C.L. 41 382 MISCELLANEOUS. fro tanto extinguished. To defeat the right to sue for a debt or on a security therefor, it is -not indispensable that the same should be discharged, for a debt or security may continue to sub- sist, yet the remedy thereon may become barred, as happens by lapse of time under the Statutes of Limitation (u). What lapse of time shall operate as a bar (x) differs according to the nature of the debt in question ; for simple contract debts, the period is six years (y) ; for specialty and judgment debts, the period is twenty and twelve years (z) respectively from the time the cause of action accrues (a), which in the particular case of bills and notes payable on demand is the date of the bill or note ; of mortgage debts secured on land we have already specified the periods minutely (6). A specialty creditor who is under the disability of infancy, coverture, or mental incapacity, when a cause of action accrues upon the specialty, may bring an action thereon within twenty years from the time the disability ceases (c) ; a simple contract creditor may, under similar circumstances, bring an action within six years from the time the disability ceases (d), nor is there any other limit within which a specialty or simple contract creditor under disability at the time his remedy accrues is bound to institute a suit (e). The above periods of twenty and six years respectively are in all cases, whether of disability or not, renewed each time any part of the principal or interest on the debt is paid (/), or any acknowledgment of the debt in writing signed by the debtor or his duly authorised agent is (it) Under the Statutes of Limitation 17 Bq. 71. Ecclesiastical Commission- affecting real property (3 & 4 W. IV. c. ers of England v. N. Eastern Kly Co., 27, 37 & 38 Vict. c. 57) not merely is the L. K. 4 Ch. D. 845. remedy barred, but the right is defeated. {y) 21 Jac. I. c. 16, s. 3; 19 & 20 Vict. A defence under these statutes is not re- c. 97, s. 9. quired to be specially pleaded by Ord. (2) 3& 4 W. IV. c. 42, s. S;ante,-p.QO. XIX., r. 18, Soh., Supreme Court of (a) Gordon v. Bruce, L.E. 3 C. P. 300 ; .Judicature Act, 1875 (Dawkins v. Lord Bonomi v. Backhouse, 9 H. L. C. 503 ; Penryhn, L. E. 6 Oh. D. 318 ; 4 App. Wilkinson v. Verity, L. K. 6 C. P. 206. Gas. 51), though a defence under the (5) Ante, -p. ISO, et seq. other statutes which merely bar the (c) 3 & 4 W. IV. c. 42, s. 4. remedy must be specially pleaded (Cat- (d) 21 Jac. I. c. 16, s. 7. ling V. King, L. R. 5 Ch. D. 660); sed (c) As to time within which judgment quaere, Noyes v. Crawley, L. R. 10 Ch. creditors may sue, see ante, p. 90, n. (/). D. 31. (/) 3&4W. IV. c. 42, s. 5; 3& 4 (») Boatwright v. Boatwright, L. R. W. IV. c. 27, s. 40; 9 Geo. IV. 0. 14, s. 1. COLLATERAL SECURITIES. 383 given to the creditor ; and we may here remark that the acknowledgment of a debt by an instrument under seal amounts in general to a covenant to pay it, except when the acknow- ledgment is made for a collateral purpose (gr). Under the statutes of James I. and George IV., the payment of part of the priiAiipal or of interest operates as an implied promise to pay what remains due, but this implied promise is rebutted if the payment be by compulsion of law (k) ; thus, a simple contract debt is barred although interest has been paid thereon within six years, Ksuch payment being made in pursuance of a judgment recovered for such interest. On the other hand, if the transaction be voluntary, it is not necessary that money should actually pass to operate as a renewal of the cause of action (l). With regard to written acknowledgments, it is pro- vided that no indorsement or memorandum of any payment, written or made upon any promissory note, bill of exchange, or other writing, by or on the behalf of the party to whom sucli payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes (m), which, however, are to apply to the case of any defendant either by plea, notice, or otherwise (n). As an interpretation of what is to be considered an effectual acknowledgment we may refer to the following statement : — "There must be one of these three things to take the case out of the statute : either there must be an acknowledgment of the debt, from which a promise to pay is to be inferred ; or, 2ndly, there must be an unconditional promise to pay the debt ; or, 3rdly, there must be a conditional promise to pay the debt and evidence that the condition has been performed "(e). Thus, the following letters "were held sufficient to take the severaJ matters to which they relate out of the statute : — (g) Saunders v. MUsome, L, R 2 Eq. (m) 9 Geo. IV. o. 14, s. 3. 573 ; Isaacson v. Haiwood, L. R. 3 Oh. (n) Ibid., s. 4. 225. (c) /» re Eiver Steamer Co.; Mit- (A) Morgan v. Rowlands, L. R. 7 Q. obeli's Claim, L. R. 6 Ch. 828, per B. 493. Mellish, L. J.; Meyerhoff v. Froeh- {l) Maber v. Maber, L. R. 2 Ex. 153. lich, L. R. 3 C. P. D. 333. 384 MISCELLANEOUS. "As soon as we get our affairs arranged we will see you paid" (/). " Yours of the 10th inst. received respecting Mrs. W.'s claim upon me. It is totally out of my power at the present time to liquidate the whole or even part of the same. I am in the anticipation of a better position, and, should I be successful, Mrs. W.'s claim shaill have my first consideration. Meanwhile I shall be pleased to pay a reasonable interest on the amount. Show this letter to Mrs. W., and tell her the claim has not been forgotten by me, and shall be liquidated at the earliest oppor- tunity." " At present it is utterly out of my power to do any- thing. I am willing to endeavour to pay it (the debt) off by easy instalments, or I am willing to pay you any reasonable interest to let the matter remain for the present " {g). " I shall be obliged to you to send in your account made up to Christmas last. I shall have much work to be done this spring, but cannot give further orders till this be done." " You have not answered my note. I again beg of you to send in your account, as I particularly require it in the course of this week " (c). On the other hand, a letter expressly written without prejudice to any defence under the statutes is not a sufiScient acknowledg- ment {d), nor a letter, the effect of which is that the writer is not certain a debt is owing, but will have the matter inquired into (e) ; so, the following letter was held to contain an insuffi- cient acknowledgment : — " I do not wish to avail myself of the Statute of Limitations to refuse payment of the debt. I have not the means of payment, and must crave a continuance of your indulgence. My situation as clerk does not afford me the means of paying by a shilling, but in time I may reap the benefit of my services in an augmentation of salary that may enable me to propose some satisfactory arrangement. I am much obliged to you for your forbearance " (/). The right to (/) Chasemore v. Turner, L. B. 10 Ex. D. 314. Q. B. 500. (d) In re Eiver Steamer Co. ; Mit- (g) Wilby v. Elgee, L. E. 10 C. P. cheU's Claim, L. E. 6 Ch. 822. *97- (e) ColBnaon v. Margesson, 27 L. J. (c) Quinoey v. Sharpe, L. E. 1 Ex. Ex. 305. D. 72. See also Lee ii. Wilmot, L. E. (/) Eockham v. Marriott, 26 L. J 1 Ex. 364 ; Skeet v. Lindsay, L. E. 2 Ex. 315 ; 25 Hid., 324. COLLATERAL SECURITIES. 385 sue upon a subsisting debt or security may also be lost by circumstances which create an estoppel against a creditor enforc- ing his claim. Of this subject we have already spoken at some length (g), and we mayhere, therefore, summarise the law in the statement, that a creditor who makes a representation to his debtor of some fact relating to the debt or security therefor, intending that the debtor should act on such representation, and the debtor accordingly does act on the representation and so changes his position, cannot be afterwards heard to say that the representation so made was false ; hence, if a creditor inform his debtor that the debt is discharged, and the debtor on the strength of that assurance enters into some irrevocable engagement, as that of marriage, to promote which the creditor made such assurance, the debt cannot be enforced afterwards (h). If, however, the representation amount to nothing more than a declaration of intention on the part of the person making it, as in the above instance if the creditor had only said he intended to forgive the debt, there is no estoppel, and the debt could be afterwards enforced ; to constitute an estoppel the representa- tion must be of an existing fact or state of things, not of a mere intention (i). When a debt is discharged or barred in the manner now described, the securities for it are also discharged and barred, and such discharge or bar is general ; we have next, therefore, to allude to the way in which a particular security may be dis- charged or barred. Suppose, then, a subsequent security be given and accepted in substitution of a prior one, or, being of a higher nature, be co-extensive therewith, such subsequent security will alone avail; thus, let a debt be secured by mort- gage, and let it be afterwards agreed that the mortgagee shall give up the mortgage charge on receiving the mortgagor's (g) Ante, pp. 265, 266, 272, 273, 339, Nat. Bank of N. Orleans, L. E. 6 H. L. 340. 352 ; Middleton v. Pollock ; ex parte (h) Pickard v. Sears, 6 Ad. & Eb. WetheraU, L. R. 4 Oh. D. 49. As to 469 ; Freeman v. Cooke, 2 Ex. 654. representations by feme covert having (i) Jordan v. Money, 5 H . L. C. 1 85 ; property to her separate use, see Stanley Citizens' Bank of Louisiana v. First v. Stanley, L. K. 7 Ch. D. 5S9. C C 386 MISCELLANEOUS. nate of hand for the debt ; iu such case, ou the note being duly handed oyer, the mortgage ceases to be eflfective by express stipulation of the parties (Jc) ; or, again, let a non-negotiable biU of exchange be given to secure an advance and subsequently let a bond for the same be given ; in such case the bill of exchange ceases to be effective by operation of law, as the simple contract becomes merged in the contract under seal (I). The doctrine of merger is so important, as connected with our present subject, that we may be excused if we limit our observations to explain- ing its operation in the extinction of particular securities. It is a principle of law that a contract of a higher nature merges or extinguishes a contract of a lower nature when the two contracts vary only in degree of solemnity, and from the moment the higher contract is entered into the parties must altogether and absolutely abide thereby (m). By the law of England contracts ajre divided into — 1. Simple contracts, that is, agreements by word of mouth only or iu writing not under seal ; these include pawns, bills of exchange, promissory notes, and, it may be, life policies. 2. Special contracts, that is, agreements in writing under seal commonly called deeds ; these include bonds, mort- gage deeds of lands, and generally every description of bill of sale. 3. Contracts of record, that is, agreements entered into before a Court of Record and inscribed on the rolls of such court; these include judgments and recognisances. Of the three classes of contracts the lowest are simple contracts, the highest contracts of record, whilst special contracts occupy the middle place, that is, they are higher than simple contracts, lower than contracts of record ; hence, a simple contract may be (i) Bat a creditor having a mortgage policies of insurance lodged as colla- for part of his deht on funds of his teral security with the payee of a bill debtor does not necessarily surrender operate as satisfaction till money is that mortgage or lower his priority by actually received on them, Scott v. taking a subsequent mortgage on the Liflord, 1 Camp. 246. same funds for his whole debt ; nor is (I) But a bond given by a stranger a separate security to A. impeached by does not extinguish a simple contract a subsequent security to A. and B. ■ debt, Maytin v. Hooper, Ri(^. 209. jointly on the same funds (Miln v. (m) Higgens's Case, 6 Co. 44 b. Walton, 2 T. & Coll. 254) ; nor do COLLATERAL SECURITIES. 3S7 merged by a subsequent contract either special or of record, a special contract can only be merged by a contract of record, whilst a contract of record is incapable of merger. Thus, suppose a debtor successively to give to his creditor a non- negotiable promissory note, a bond, and a warrant of attorney to enter up judgment for one and the same debt ; the bond will merge the note, and thenceforth the creditor can only sue on the bond, and if judgment be entered up on the warrant of attorney, the judgment will merge the bond, and thenceforth the creditor can only sue or have execution on the judgment {n) ; and, with the annihilation of the lower contract, the instrument contain- ing it is also annihilated, so that the delivery of a bond upon which judgment had been entered up to an intended donee was held not to avail as a gift of the debt secured, for, however clear the intention of donation might be, the instrument delivered had by the judgment ceased to have any effect (o). In the example just given the judgment was voluntary or obtained by mutual consent {p), but a judgment in inviium or obtained by hostile proceedings is equally efficacious in working a merger, and that, though a less sum than the debt due is recovered by the judgment, for the recovery of a smaller sum when a larger was in litigation is a good answer to a subsequent demand of the larger sum (q). But the giving of another security, which in itself could not operate as an extinguishment of the original one, cannot operate as such by being pursued to judgment, unless it produced the fruit of a judgment ; therefore, where one of three joint covenantors gave a bill of exchange for part of a debt secured by the covenant, on which bill judgment was recovered, it was held that the judgment was no bar to an action of covenant against the three covenantors, such bill, though stated to have been given for the payment and in satis- {n) In re European Central Rly. Co. ; Temp. Plunk. 95. CK^iM^e Oriental Financial Corporation, (p) HaU v. Levy, L. E. 10 C. P. L. E. 4 Oh. D. 33. 154. (o) Patterson v. Williama, Lo. & Go. (g) Stewart v. Todd, 9 Q, B. 767. c c 2 388 MISCELLANEOUS. faction of the debt, not being averred to have been accepted in satisfaction, nor to have produced it in effect (r). On the other hand, if there be a joint unsecured debt or a joint debt secured by only one instrument, judgment recovered thereon will merge such debt, and no further claim can be made thereon ; thus, a judgment (without satisfaction) recovered against one of two joint debtors (or even joint tort feasors) (s), is a bar to an action against the other, and where such debtors are partners and become bankrupt no proof against the joint estate is admitted in bankruptcy (t) ; but if a debt be joint and several, recovery of judgment without satisfaction against one of the debtors is no answer to an action against the other (u). The doctrine of merger does not apply unless the higher contract be co-extensive with the lower, nor even in that case, if it appear from the nature of the subsequent transaction or on the face of the higher instrument that the latter was only intended as an additional or collateral security (x) ; thus, where A. and B. gave their promissory note to C. to secure a debt due from A., and subsequently, on a further advance from C, A. assigned over his household goods and chattels by bill of sale under seal to C. to secure both amounts, it was held that C. was hot thereby precluded from suing on the note (y). Where, how- ever, a warrant of attorney is given by way of better security to enter up judgment for the amount due on a bond, without more, the judgment is not construed to be a collateral, but a substituted security (z), and if in such a case a joint judgment be entered up against two obligors who are jointly and severally liable on the obligation, the liability becomes joint only, and can only be so enforced ; thus, where a joint judgment was entered up against A. and B. (a minor) on their joint and several bond, and B. (r) Drake v. Mitchell, et al. 3 E. («) King and Anr. v. Hoare, 13 M 251. & W. 494 ; KeudaU v. Hamilton, L. K. (s) Briuamead v. Harrison, L. K. 7 3 C. P. D. 403. C. P. 547 ; Huffer ■„. Allen, L. E. 2 (x) Holmes v. Bell, 3 So. N. E. 479. Ex- 15- iy) Twopenny «. Young, 3 B. & C. 208. (0 SiL parte Higgins, et al. ; In re (z) Ex parte Christie, 2 Mon. & Bli. Tyler, 3 De G. & J. 33. 352. COLLATERAL SECURITIES, 389 survived A., it was held that the judgment could not be raised out of A.'s assets (a). But if the bond in the last example had been merely itself a collateral security, the debtor or debtors might have been proceeded against according to their original liability ; thus, separate judgments having been entered up on a bond and warrant of attorney given by four brothers trading in partnership and two other persons, who had therein become jointly and severally bound for any sum not exceeding £1000 advanced by a banking company to the partnership, it was decided that the original liability of the partners continued as the bond was but a collateral security, and that, therefore, on the bankruptcy of the partnership, the banking company might prove against the joint estate for the amount covered by the security (6). It is a somewhat difficult task to determine in varying circumstances the applicability of the principle ot merger. The principle of transit in rem judicatam — as it is called when a judgment effects a merger — is said to fall under the wider rule — Nemo debet bis veocari pro una et eadem causa, and the true meaning of the merger is limited to a change of remedy, not to an extinction of original right (c). Upon this interpretation of the operation of merger a landlord was held entitled to bring ejectment for arrears of rent under the Irish Common Law Procedure Act, although he had previously obtained judgment for the amount due in an action on the covenants in the lease, execution on such judgment not having satisfied his claim (d). Where there is only one security for a debt and that security is pursued unto judgment, the judgment can alone be enforced ; where there are several securities for a debt, the pursuing of one to judgment cannot affect the others except so far as the debt itself is affected by satisfaction, this, we submit, is the practical rule so far as we are concerned, and as an illustration we would {a) Henry v. Archibald, 5 Ir. R. Bq. (6) In re Clarkes, 2 J. & L. 212. 559. Asto judgment by default against (c) Per Fitzgerald, J., Wakefield v. adult for debt contracted during in- Smythe, 16 Ir. C. L. R. 173. fancy, see Bx parte Kibble ; in re 0ns- {d) Ibid. low, L. R. 10 Oh. App. 373. 390 MISCELLANEOUS. adduce the following case : On 6tli March, 1854, K. obtained a joint judgment against W. and C. (a surety) in the penal sum of J61146 on foot of their joint and several bond to secure £57S. W. by his will, dated 6th May, 1854 — the day of his death- charged all his property with payment of his debts, and in 1855 K. executed a release to C. of the judgment, reserving his rights against W.'s representatives; held, that such release did not extinguish the concurrent remedy given by W.'s will against his lands, but that K.'s debt remained chargeable thereon (e). The foregoing distinctions suggest the question^how is a creditor's right to sue for a debt affected by taking a security; can he sue on the original cause of action, or must he bring his action on the security, supposing, of course, that no express stipulation has concluded the matter ? In answer to this inquiry a distinction must be taken both as regards the nature of the security and as regards the object with which it is given (/) ; if the security be purely personal, then, in the absence of a positive agreement that the instrupaent is given only as a col- lateral security, the creditor, as a rule, has no remedy except on the security, atleast in the first instance ; thus, a bill of exchange or promissory note given (and that even by a third party) (g), and accepted on account of a simple contract debt suspends the right to sue for such debt till the bill or note becomes payable or is dishonoured, but if it be not paid when duly presented, the creditor may then sue on the original debt (h), provided he has taken the proper steps to obtain payment, otherwise the conditional discharge effected by the bill or note becomes absolute (i). As to personal securities which are of a higher nature than a simple contract debt, as bonds and judgments, these do not merely suspend the right to sue upon the original cause of action, but either extinguish it by merger or else do not (e) In re Wamoek's Estate, Ir. K. L. E. 2 0. P. 556 ; Oohen v. Hole L E 11 Bq. 212. 3 Q. B. D. 871. ' (/) In re Boys, L. E. 10 Eq. 467. (i) Peacock and Anr. ». Pursell, 14 (g) Bebhaw v. Bush, 11 C. B. 191. C. B. N. S. 728. (A) National Savings Bank v. Tranah, COLLATERAL SECURITIES. 391 interfere therewith, but give co-existent remedies. If the security given for a debt directly affect property, as a mortgage or pawn, then, if no engagement to the contrary be expressly entered into, the creditor has usually two concurrent remedies : he may either sue on the original cause of action, or he may proceed to realise his security. In the case of a mortgage, the mortgagee" may sue on the implied assumpsit to recover the mortgage debt without any express stipulation on the part of the mortgagor ; if there be an express covenant for repayment, the action must be brought on such covenant whether the same be under seal and so work a merger of the simple debt, or be not under seal, for Uxpressum facit eessare taciturn. Where a creditor takes as security for his demand the assignment of a debt due to his debtor from a third party, and such debt becomes irrecoverable through the creditor's wilful default, he must bear the loss thereof (^). Whatever the nature of a security may be, the object with which it is given may change its effect on the creditor's original right of action ; thus, a bill of exchange or promissory note may be expressly given as a mere security for a debt, and in that event the creditor's right to sue upon the original cause of action is not suspended (I) ; so, conversely, a mortgage may be effected on the express understanding that the original cause of action shall be suspended or waived. Thus, then, a creditor's right to sue, both upon a debt and upon a security given for the same, depends upon the nature of the latter and the object with which it is given and accepted ; and when such double right of action exists the security is sometimes spoken of as a collateral security for payment of the debt, possessing as it does several of the attributes which belong to the securities to which we more particularly apply that designa- tion. These consist, as we stated, in a plurality of instruments, each securing the same debt, and supporting a separate action. (*) WiUiams v. Price, 1 Sim. & Stu. L. K. 12 Bq. 501 ; Leather v. Simpson, 581. L. R. 11 Eq. 398. (I) In re Oriental Commercial Bank, 392 MISCELLANEOUS. With the explanation now afforded of the chief modes in which such separate action is defeated, let us next address ourselves to the relations collateral securities involve. The holder of several collateral securities is entitled to pro- ceed upon any one, or upon all at his pleasure, to obtain satisfac- tion of the debt or claim secured so soon as the same has fallen due ; thus, on default in repayment of an advance secured by note of hand, mortgage, and judgment entered up on a warrant of attorney, the lender may bring an action to recover on the note or to foreclose the mortgage, or he may issue execution on the judgment; or, if he so wishes, he may pursue all these remedies at the same time, but, once the debt is satisfied, the securities are at an end and must in many cases be delivered up to the debtor or as he shall direct (m). Nor is it necessary to the satisfaction of a debt that the same should be actually paid in money by the debtor ; for, if a creditor holding a negotiable bill or note or having a mortgage as security for his debt negotiate the bill or note or foreclose the mortgage, the debt will be thereby extinguished — in the former case, to the extent of the value of the negotiable instrument ; in the latter case, absolutely (n) ; so that, if after foreclosure the mortgaged property be sold and fetch less than the debt it secured, the creditor cannot seek to recover the deficiency upon any collateral security he may have (o). Accordingly, a creditor who has reason to doubt the sufficiency of a mortgage to cover the amount thereby secured ought not in the first instance to seek a foreclosure, but should rather proceed on all his securities or else claim to have the mortgaged property sold or exercise his power of sale if he have one, for on the inadequacy of the proceeds so realised to (m) Darlow v. Cooper, S4 Beav. 281 ; securities to recover the balance of Ms Ex parte Mure, 2 Cox, 63 ; Binns ii. debt, but by so proceeding he opens the Fisher, 43 L. J. Ch. 188 ; Hinds v. foreclosure so as to give a new right of Blacker & Coffey, I. K. 11 Eq. 322 ; redemption to the mortgagor ; Palmer 1 L. K Ir. 233 ; Kellock's Case, L. K. v. Hendrie, 27 Beav. 349. 3 Ch. 776. (o) Palmer v. Hendrie, ubi supra ; (n) So long as the foreclosed property Lockhart v. Hardy, 9 Beav. 349 ; Perry remains in the hands of the mortgagee, v. Barker, 8 Ves. 527 ; Budge v. Bichens, he may proceed upon his collateral L. B. 8 C. P. 358. COLLATERAT, SECURITIES. 393 meet the debt due, the debtor and any outstanding collateral securities he has given will remain liable for the deficiency. So long as a debt remains wholly or partially unsatisfied, each -collateral security remains also unsatisfied until realised ; thus, to take our former example of a debt secured by note of hand, mortgage, and judgment entered up on a warrant of attorney, suppose execution is levied on the judgment under a writ of fi. fa., and the result of the seizure is not enough to defray the amount due, then, until return of the writ, the creditor could not levy another execution on the same judgment {p), nor, if he had levied under a writ of elegit, and any lands were extended thereunder, could any further execution other than under an elegit be ever had on the judgment (q), but in both these cases the creditor can at any time recur to the note or mortgage to recover the balance yet unpaid. Although the holder of collateral securities is entitled to proceed upon which he pleases, yet he cannot capriciously exercise his option to the prejudice of other creditors of the same debtor ; thus, suppose a debtor mortgage Whiteacre and Blackacre to A., and subsequently mortgage Whiteacre to B., then, if Blackacre be sufficient to cover A's charge, B. can restrain A. from having recourse to Whiteacre, or, if A. have already realised his security out of Whiteacre, B. will be allowed to stand in A.'s shoes as to Blackacre, and will be entitled to a lien thereon commensurate with his lien on Whiteacre (r). So, where T. insured his life on three dififerent policies, X, Y, and Z, and mortgaged the same at different times to the insurance company for three several advances, and, on the last advance, policies X and Y w^ere mortgaged, and H. became surety for repayment of the amount then advanced, and subsequently, on T.'s becoming bankrupt, H. was compelled to pay the sum guaranteed, it was held that, on the death of T., the surplus of (p) Chitty's Archb. Q. B. Pr. 12th II. W. & T. Lead. Cas., 5th ed., 80; In ed. 680, 691. re International Assurance Society, L. (g) lUd., 691. K. 2 Ch. D. 476. (»■) Aldrich v. Cooper, 8 Vea. 388 ; 394 MISCELLANEOUS. the moneys arising from the policies after liquidation of the company's claims, should go to reimburse H. what he had been so forced to pay, and did not accrue to the bankrupt's general estate (s). The doctrine according to which the above substitu- tions take place is known as the marshalling of securities, and it applies wherever one creditor or one set of creditors has a lien or charge on two or more funds, whilst another creditor or set of creditors of the same debtor has a lien or charge on only one or some of such funds, and there are no other incumbrances on the funds, for in every such case the creditor or creditors having a lien or charge on a single fund only, will, if that fund be ex- hausted by a creditor or creditors who might resort to another fund, be permitted to claim against the latter fund to the same extent as they might have claimed against the former if unex- hausted. For the application of marshalling it is necessary that the double fund should belong to the same debtor ; hence, if A. have a charge secured on two funds, one belonging to 0. and the other to D., and B. have a charge on C.'s fund only, B. can- not throw A. on D.'s fund. Again, there can be no marshalling if the rights of third parties would be thereby interfered with ; hence, if a debtor charge two funds, F 1 and F 2, in favour of A., and subsequently charge F 1 in favour of B., and F 2 in favour of C, B. cannot require A. to satisfy himself out of F 2, because to do so would work an injustice to C, but A. can be compelled to raise his charge rateably out of the two funds. If, however, a third mortgage is made expressly subject to the prior mortgages, the mesne mortgagee is entitled to marshall ; thus, where funds X and Y were mortgaged to A., and then X was mortgaged to B., and subsequently X and Y were mortgaged, subject to the prior mortgages being first paid off, to C, and X was absorbed by A.'s mortgage, it was held that B. was entitled to have Y applied in satisfying his mortgage in full in priority to C. («). (s) Heyman v. Dubois, L. E. 13 Eq. (t) In re Mower's Trusts, L. K. 8 Eq. 158. 110. COLLATERAL SECURITIES. 395 Where a man, against whom a judgment binding his lands was in force, settled portion of his estate with a covenant against incumbrances, and after the settlement other judgments affecting his lands were obtained against him, it was held that the first judgment must be thrown on the unsettled lands, and that the holders of the subsequent judgments had no equity to con- tribution from the settled lands (u). In dealing with the present subject, it should be borne in mind that a judgment creditor takes no better title than the judgment debtor possessed at the time of the judgment, and, therefore, cannot insist on marshalling to the same extent as a mortgagee ; accordingly, where an owner in fee made a voluntary settlement giving himself a life estate, and after the settlement mortgaged the property so settled, and subsequently a judgment was obtained against him, it was decided that to the extent of the mortgages the settlement was defeated, but that the judgment creditor could take nothing beyond the settlor's life interest ; that, as to two sums charged by the settlement on the inheritance for so much thereof as had been actually paid off by the settlor, the judgment creditor would be allowed a charge on the reversion, but that he could not claim to have the life interest further exonerated (x). The principle of marshalling obtains not only in the case of pay- ment of securities where the parties are living and solvent, but also in the administration of assets whether of a deceased person or of a bankrupt (y) ; nor does it matter of what nature the funds in question may be, as whether one is real, another personal, property, or whether the title to one be legal, to another be merely equitable (z), for, generally, where a double fund exists (and without an actual existence of both double fund ^nd charges well created thereon the principle has no applica- tion) for the discharge of one set of claims and a single fund («) AveraU u Wade, L. & G. Temp. Ch. D. 109 ; Tomkins v. Colthurat, L Sug. 252. K. 1 Ch. D. 626 ; Trwnper v. Trumper! (x) Dolphin v. Aylward, L. E. 4 H. L. K. 14 Eq. 295. L. 486. (z) Aldrich •;;. Cooper, uU supra. {y) Farquharson v. Moyer, L. R. 3 396 MISCELLANEOUS. for the discharge of another set of claims, the parties entitled to the .single fund only cannot be disappointed by the exhaustion thereof by the parties entitled to the double fund, except, of course, the double fund is entirely swallowed up in satisfying the claims of the prior incumbrancers. With regard to specific securities held on the property of a bankrupt or any part thereof, it is provided that the secured creditor may either (1) give up his security and vote and prove for his whole debt, or (2) realise his security and vote and prove for the balance only (if any), or (3) assess the value of his security and vote and prove for the balance only (if any). A secured creditor not complying with the foregoing conditions is excluded from all share in any dividend (a). By a secured creditor is meant any creditor holding any mortgage, charge, or lien on the bankrupt's estate or any part thereof as security for a debt due to him ; an execution creditor under whose fi. fa. the sheriff has seized but not sold prior to any act of bankruptcy to which the title of the trustee relates, is a secured creditor within the above definition, unless the debtor is a trader and the execution for more than £.50 (b) ; so a judgment creditor who obtains a garnishee order under the Common Law Pro- cedure Act, 1854, becomes a secured creditor (c), and that even before the same is made absolute (d) ; but a judgment creditor whose writ of execution has been merely delivered to the sheriff, and remains unexecuted by seizure (e), or who has obtained judgment against the garnishee under an attachment in the Mayor's Court (/), or who has a mere licence to seize the (a) 32 & 33 Vict. c. 71, s. 40 ; EK. (c) Emanuel v. Bridger, L. K. 9 Q.E. 78-81, 99, 136, Gen. RE. 1870, s. 16, 286; Lowe v Blakemore, L. K. 10 Q. sah-B. 5; Inre GoUie; Ex parte M.a.ncheB- B. 485; Ex parte Banner; In re Key- ter and City Bank, L. R 3 Ch. D. 481. worth, L. R. 9 Ch. App. 379. (6) 7n. re Lewis ;.£■« ^(wie Chanthner, (d) Ex parte Joselyne; In re Watt, L. E. 3 Ch. D. 113; In re Balbumie ; L. R. 8 Ch. D. 327. Ex pa/rte Jameson, L. K. 3 Ch. D. 488 ; (e) Ex parte Williams, re Davies, L. Slater v. Pinder, L. R. 6 Ex. 228 ; Ex E. 7 Ch. 314. paHe Rocke, re HaU, L. R. 6 Ch. 795 ; (/) .ffx porfe Mauritz, re Giles, L. R. Ex parte Lovering, re Peacock, L. R. 6 Ch. 779 j Redhead v. Welton, 30 L. 17 Eq. 452. J. Ch. 577. COLLATERAL SECURITIES. 397 debtor's property still unexecuted at the time of the act of bankruptcy to which the trustee's title relates (g), is not a secured creditor as above defined. If a secured creditor elects to assess the value of his security and prove for the balance only, he becomes completely bound by such assessment, so that if the security turn out to be more valuable than was assessed, the trustee will be entitled to the balance in excess (A) ; if less valuable, the creditor cannot increase his proof (i) ; a secured creditor may, however, abstain from seeking any benefit under the bankruptcy administration, and, in that event, though he cannot share in any dividend from the insolvent estate, he may realise or otherwise deal with his security in the same manner as he would have been entitled to realise or deal with the same if the bankruptcy had not supervened (k). In the case of a composition, a secured creditor is not bound by the com- pounding debtor's estimate of the value of the security, nor is he debarred, if he has abstained from taking any part in the composition proceedings, from claiming, after realisation of his security, payment of the composition upon the value which may then remain unsatisfied of the debt (l) ; if, however, he prove under a liquidation petition, he cannot set up his security after a composition has been accepted. Through the operation of marshalling, a secured creditor may, as we have seen, under certain circumstances, when de- prived of the benefit of his own security, be compensated by that of another ; that compensating advantage is conferred not by contract, but by a principle of equitable administration. Here, therefore, as having a similar origin, we may take occa- sion to allude to the rule in Ex parte Waring, whereby the holder of a bill of exchange, on the insolvency of both drawer {g) Cole V. Kemot, L. E. 7 Q. B. Bank, L. R. 10 Ch. D. 681. 534. (l) In re Bestwick ; Ex parte Best- (A) R. 100, Gen. ER. 1870 ; Exparte wick, L. R. 2 Ch. D. 485 ; In re Bal- Carr ; In re Hoffman, W. N., (1879) 36. burnie ; Ex parte Jameson, L. R. 3 Ch (i) R. 101, Gen. RR. 1870; Exparte D. 488 ; White v. Simmons, L. R. 6 King, re Palethorpe, L. R. 20 Eq. 273. Ch. .555 ; Ex parte Brett ; In re Howe [k) S. 12 ; Moor v. Anglo-ItaUan L. R. 6 Ch. 838. ' 398 MISCELLANEOUS. and acceptor, is given a specific lien on any securitiea that may have been appropriated to meet such bill. Thus, suppose the drawer of bills assigns over a mortgage or other security to the acceptor by way of indemnity against any liability incurred by the acceptance, and that, the bills being put into circulation and still outstanding, both drawer and acceptor become bankrupt, then the bill holders will be entitled to the benefit of the assigned security, if it has not been disposed of or dealt with so as to lose its character of indemnity. Here, then, apart from any contract on their part, the biU holders have a specific claim upon the indemnity, and such claim is based on the equity that has to be worked out between the two insolvent estates for whose mutual advantage the lien is allowed to prevail (m). A moment's thought will show how completely in accord with justice and equitable principles is this rule ; in fact, the matter stands thus: the acceptor is primarily liable for the amounts due on the bills, therefore he could not be compelled to deliver up the indemnifying securities until either the bills were paid off or he was put in funds to meet them ; subject, however, to the discharge of the bills, the securities belong to the drawer ; now, unless the bill holders are allowed a specific lien, the securities will go to swell the general estate of the acceptor, and the drawer's estate is consequently defrauded, whilst the general creditors of both bankrupts would also suffer — the creditors of the acceptor, because the bill holders to the amount of the bills and the trustee of the drawer to the amount of the indemnifying securities must be let in to prove in full against the general estate of the acceptor ; the creditors of the drawer, because the bill holders must be let in to prove against the general estate of the drawer, without allowance for the indem- nifying securities. Hence, the specific lien conferred on the bill holders arises by a sort of natural necessity, for otherwise it would be impossible fairly to adjust the various interests at issue between the two estates, the end and object of the Rule in Ex parte Waring, the nature and limitations of which we (m) Ex parte Waring, 19 Ves. 349. COLLATEBAL SBOURITIBS. 399 may now more particularly discuss. For the application of the Rule it is necessary : (1) that there should be a double insol- veucy involving the forced administration of the estates of both drawer and acceptor of outstanding bills of exchange, and that the bill holders should have the right of double proof against each estate for the full amount ; (2) that securities should have been specifically appropriated to meet such bills ; (3) that the appropriated securities should remain in statii quo — that is, should not have been diverted from the purpose of serving as indemnities ; (4) lastly, that there should be no agreement between the bill holders and the drawer or acceptor as to the disposal of the securities (n). 1. First, then, the rule requires there should be insolvency of both drawer and acceptor involving a forced administration of their estates. If either drawer or acceptor were solvent, the bill holders would be paid in full ; if the administration were voluntary, the conflicting interests would be bound by express agreement — in neither alternative does the necessity for working out an equity between the two estates arise. In the leading case from which the rule derives its name, the facts were these : Bracken & Co., manufacturers in Lancashire, drew bills on Brickwood & Co., bankers in London, who accepted the same on receiving from the drawers an equitable mortgage by deposit of title deeds of premises in London. The bills were negotiated, and, whilst outstanding, both firms became bankrupt. On the application of the bill holders, it vvras decreed by Lord Eldon that the proceeds from the realization of the property comprised in the equitable mortgage must first be applied to the discharge of the amounts due on the bills,' and that any balance belonged to the genera] estate of the drawer and mortgagor. The rule thus established had its first application in cases of double bankruptcy ; afterwards it was allowed to prevail where one of the estates was bankrupt, and the other was being administered in an administration suit as insolvent (o) ; still more recently (n) See The Rule of Expa/rte WariBg, (o) Powlea v. Hargreaves, 3 D. M. & by A. C. Eddis, to which we are much G. 430, 23 L. J. Ch. 1. indebted. 400 MISCELLANEOUS. it has been adopted where the estate or estates is that of an insolvent company being wound up compulsorily or under the supervision of the Court (p) ; and now it would probably be held admissible wherever there was a double insolvency, of whatever kind, of drawer and acceptor, and a consequent in- voluntary administration of their estates. Such administration must be judicial ; therefore, if either drawer or acceptor enter into a mere private composition with his creditors (g), or if he be beyond the power of the Court, the rule has no application (r). However, it is not necessary that the bill holder should have double proof on the bill itself, it is enough if he can prove against one estate on the bill, and against the other estate on the debt represented by the bill. Thus, a holder, who is also the drawer of a bill, may have the advantage of the rule (s). Moreover, it is not essential that the depositor of the indemni- fying securities should be directly liable on the bills as drawer or acceptor, for if he be liable in respect of the transaction re- presented by the bills, that is sufficient (t). 2. Next, the rule requires that securities should have been specifically appropriated to meet outstanding accepted bills of exchange. Such acceptance and appropriation are absolutely indispensaHe. What will suffice to constitute an effective appropriation is frequently a question of great nicety. If securities are expressly transferred to supply an indemnity, the appropriation is ipso facto complete ; so, according to the later authorities, there may, it would seem, be a sufficient appropria- tion by virtue of a mere course of dealing, by which, in fact, an acceptor is put in funds before the maturity of the bills, and with those funds is in the habit of dischargiiig the amounts of the acceptances as they fall due (u) ; but an assurance, however {p) In re Bamed's Banking Co., L. parte Gen. S. American Co., L. R 10 R. 19 Eq. 1 ; L. R. 10 Ch. 198 ; Hickie Ch. 635. & Co.'s Case, L. K. i Eq. 226. ' (s) Ex parte Smart, L. R. 8 Ch. 220. (a) Re M. an Arranging Debtor, Ir. (t) Ex parte Aokroyd, 3 De G. P. & E. 11 Eq. 193. J. 726; Ex parte Smart, L. E. 8 Ch. (r) In re Yglesias ; Ex pwrte Gomez, 220. L. R. 10 Ch. 639 ; In re Yglesias ; Ex (u) Shepherd v. Harrison, L. R. 6 COLLATERAL SECURITIES. 401 honestly made, by the drawer to the holder of bills, that the same are certain to be duly honoured, inasmuch as they are already covered by funds provided by the acceptor for that pur- pose, cannot convert dealings between the drawer and acceptor into an appropriation, if not such already (x). A direction by a consignor to his consignee to place the invoice price of goods (not the proceeds of the sale) to his credit, and the bills draM'n against them to his debit, does not amount to an appropriation of the goods to protect the bills ; and it was held that a foreign firm engaged by an English firm to purchase goods as their agents and remit them to England, having accordingly shipped goods to England, and sent the bills of lading directly to the English firm, had, whether as agents of, or vendors to, the Eng- lish firm, parted with all property in the goods, so as to be unable to direct an appropriation of the proceeds (y). To avail the bill holders, however, the appropriation need not be simply as a specific indemnity for payment of the bills, for if funds are appropriated to securing a general credit, which includes advances upon bills, the holders of bills drawn thereunder are entitled to a lien on such funds. Thus, where K. & Co. accepted bills for L. & Co., and the latter mortgaged to the former an estate in Guiana to secure a cash credit granted by K. & Co. to the extent of 75,000 dols., and there was a general current account between the two firms, it was held that, on the double insolvency of K. & Co. and L. & Co., the mortgage was a security for money to meet the bills, and that the holders thereof Avere entitled to have the mortgage realised in their favour (z). 3. Another condition upon which the applicability of the rule depends is that the appropriated securities continue as indemnities at the time when the double insolvency takes place — that the contract between the two parties liable to the bill H. L. IIC; In re Yglesias ; Ex parte 352. Gomez, L. E. 10 Ch. 647. (Triming- {;/) £x parte Banner ; In re Tappen- ham V. Maud, L. E. 7 Eq. 201, disap- beck, L. E. 2 Ch. D. 278. proved.) _ (z) City Bank v. Luokie, L. E. 6 Ch. (x) Citizens Banlc of Louisiana v. 773, Bank of New Orleans, L. K. 6 H, L. D I) 402 MISCELLANEOUS. holders should at the time when the latter make their claim subsist and be incapable of alteration (a). Up to that period, it is quite competent to the parties by whom the appropriation was made to enter into an agreement which will put an end to the original compact, and, if such agreement be come to, then the bill holders can claim no lien, though the securities be still in the same hands as when they were appropriated. Thus, Avhere an equitable mortgage stood as indemnity for certain bills, in place of which new bills were given, it was held that the holders of the new bills could not claim the benefit of the mortgage, . the new bills having been substituted before the double insolvency of the drawers and acceptors (6). However, a misappropriation by the acceptor of part of the indemnifying securities does not impair the light of the bill holders to the benefit of the remainder (c). 4. Finally, the rule cannot operate if the bill holders make an express stipulation for the benefit of the appropriated securi- ties, for such positive arrangement overrides the implied equity that might otherwise arise [d). The principle in ex parte Waring is admitted where the rela- tion of principal and agent subsists between the parties liable on a bill in the same way as if the parties were strangers ; also, whether or not the bill holders are cognisant of the appropria- tion of the indemnifying securities, nor is it any objection whether these exceed or fall short in value of the amounts due on the bills, for, on realisation, the excess will accrue to the estate of the owner of the securities, the deficiency can be claimed against the two insolvent estates, and the bill holders will be allowed to prove against each pro tanto. The extent to which the drawer, acceptor or indorsee of a bill covered bv collateral securities can avail himself thereof (a) In re Lindsay; Ex parte Lamb- Ch. 423. ton, L. K. 10 Ch. 405 ; In re Yglesias ; (c) Ex parte Carrick, 2 De G. & Jo. Ex parte Gen. S. American Co., L. li. 208. 10 Ch. 635. (d) Ex parte Copeland, 3 Dea. & Ch. {i Ex parte Alliance Bank, L. K. 4 199. COLLATERAL SECUHITIES. 403 on the insolvency of one of the parties to the billj must depend upon the particular circumstances of each case and the peculiar relations of the several persons concerned. A person, who was appointed a company's agent for the sale of their goods under an agreement that he should be paid by commission on the sales, and should accept bills for the company for such reason- able amount as was represented by their goods from time to time on his premises, and, if on maturity of the bills he had not sufficient funds, the company were- to make good the difference, was allowed, on the failure and winding-up of the company, a lien on their goods then in his hands to the amount of a bill accepted by him, but not yet at maturity (e). V. sold to the C. Bank a bill of exchange for £1,200, drawn on his consignees, for price of goods shipped, and handed to the bank as collateral securities for due payment of the bill of exchange, the bill of lading and a policy on the goods for £1,700, with a letter of hypothecation empowering the bank on dishonour of the bill of exchange to sell the goods and apply the proceeds in payment of such bill — the balance, if any, to be placed against any other bills, or any other liability of V. to the bank; the ship and goods were lost at sea, and the policy moneys were paid to the bank, the consignee having dis- honoured the bill of exchange. V. had before the loss assigned over the policy moneys subject to the bank's indemnity for valuable consideration, and was at the time the moneys came to the hands of the bank indebted to the same on other bills and liabilities. Under these circumstances, it was held that the bank could only retain £1,200 out of the policy moneys, and that V.'s assignee was entitled to the balance. This decision is founded on two facts, viz., (1) that the general lien of bankers was ex- cluded ; that followed from the particular purpose for which the policy was handed over, namely, to secure payment on the bill for £1,200 ; (2) that a lien on goods consigned does not give a corresponding lien on a policy under which the goods are in- (e) In re Pavy's Patent Felted Fabric Kanken v. Alfaro, L. E. 5 Oh. D. 786. Co., L. E. 1 Ch. D. 631. See also DD 2 404 MISCELLANEOUS. sured ; hence, the general lien which the Bank had upon the goods, according to the express terms of the letter of hypotheca- tion, did not extend to the proceeds of the insurance (/). So, where the consignor of goods, of which there was a partial loss at sea, exercised his right of stoppa,ge in transitu on the in- solvency of the consignee, by whom the goods had been pre- viously insured, it Avas decided that the consignee, not the consignor, was entitled to the money paid under the policy for the loss ((/). Where a bill of exchange is drawn against a particular cargo in the words " which place to account cargo per A," a lien on the cargo does not necessarily pass to every holder of the bill ; to give such lien the bill of lading should be annexed {h). From these cases we may pass to some important points connected Avith policies of life insurance acting as collateral securities. It will be remembered that a creditor has an insur- able interest in the life of his debtor to the extent of the debt due, and that the subsequent discharge of the debt does not discharge the insurer's liability, but that the policy continues to subsist as before (i) ; for whose benefit is the matter we have now to consider. No difficulty can arise where a creditor simply and solely, at his own expense and in his own name, insures the life of his debtor ; in such case, whatever becomes of the debt, it is clear the creditor alone and absolutely is entitled to the policy. "When, however, the insurance is not merely at the expense of the creditor, then he cannot claim the policy for his own exclusive benefit, but on discharge of the debt it will belong to the person who has advanced the premiums. Accordingly, when the relation of debtor and creditor subsists, and the true construction of the instruments, and the evidence of the real nature of the transaction shows that the policy .of assurance was effected by the creditor as a security or indemnity, if the debtor (/) Latham v. Chartered Bank of ^arfcMann; /ju'eKatteiigell,L.E.5Ch. India, L. E. 17 Eq. 207. D. 367 ; Johnson v. Eobarts, L. K. 10 {g) Bemdtson v. Strang, L. E. 3 Ch. Ch. 505; Ebsworth v. Alliance Marine 588. Insurance Co., L. E. 8 C. P. 596 ; Steele (A) Eobey & Co.'s Perseverance Iron v. Stuart, L. E. 2 En. 84, Works V. Oilier, L. E. 7 Ch. 696 ; Ex (t) Ante, p. 82. COLLATERAL SECllRlTlES. 4G5 directly or indirectly provides money to defray the expense of that security, he is on a principle of natural equity entitled to have the security delivered up to him when he pays his debt, which it was directly or indirectly at Lis expense effected to secure : Qui sentit onus scntire debet et cominodwn (k). But to gain such an advantage, the debtor must either have actually paid for the insurance, or else there must be distinct evidence of a contract that the creditor has agreed to effect a policy, and that the debtor has agreed to pay the premiums; therefore, where a creditor effected policies on the life of his debtor whom he debited in his books with the premiums, and there was evidence to show that the debtor was aware of the existence of the policies, but not that the premiums were charged to his account, it was decided that the debtor's representatives had no claim to the policies (T). It would, however, have been other- wise had the account been sent in to the debtor, and if by payment of the debt during his life he would have had a right to the policy (m). In reference to the present subject, it is important to distinguish the sale of an annuity Avith condition for re-purchase from a mere loan, for a policy effected by the annuitant on the life of the grantor of the annuity can rarely be claimed by the latter on re-purchase of the annuity, though had the transaction been a simple loan the borrower would have been entitled on discharge of the loan to a policy effected on similar conditions by the lender ; hence it was held that on re- purchase of an annuity the vendor could not claim an insurance on his life effected by the purchaser who paid the premiums, though there was a condition that the vendor should pay an extra charge on going beyond the seas or entering into military service (n). So, where A. agreed to pay 8 per cent, during his life to B,, and a further annual sum to cover premiums on a policy for £200 effected by B. on A.'s life, in consideration of an advance of £200, and the annuity so granted was redeemable on (i) Conrtenay v. Wright, 2 Giff. 35L (m) Morlana r. Isaac, 20 Beav. 889. {I) FremB v. Brade, 27 L. J. Ch. C97 ; (n) Knox v. Turner, L. R. 5 Ch. 60 ; Bruce V. Garden, L. K. 5 Ch. 32. Preston v. Neok, W. N. (1879) 57, 58, 40G MISCELLANEOUS. re-payment of the advance and all interest and expenses there- on, it was decreed that, on such redemption, A. had no claim to the policy (o). If, however, on the grant of a redeemable annuity, it is expressly stipulated that the grantor on redemp- tion shall be entitled to an assignment of all securities held therefor, then policies effected by the annuitant on the life of the grantor will be comprehended under such stipulation, and will pass to the grantor on due redemption (p.) The contrast between the right to a policy on a debtor's life, and the right to a policy on the life of the grantor of a redeemable annuity, flows from the entirely different nature of a loan and of a re- deemable annuity: in the case of a loan, the borrower is liable for the whole amount lent, and if the creditor with his consent effect a policy on his life, the premiums are, generally, either directly or indirectly, by a higher rate of interest, paid out of the borrower's pocket ; in the case of a redeemable annuity, the grantor is not liable for the purchase-money given by the annuitant, but only for an annual payment liable at any time to be defeated by death, and the premiums on a policy effected by the annuitant on the grantor's life are really so much of a deduction from the annuity. In a loan transaction a creditor or debtor's right to a policy is not lost because some' of the premiums are paid by the other party, for once the right is established the person entitled originally can claim the policy on re-payment of the advanced premiums (g), and premiums paid on the bankruptcy of the insured by the bankrupt were regarded as in the nature of salvage moneys, which ought to be repaid with interest at 4 per cent, out of the policy m6neys'(r). The payment of premiums by tenant for life of a residuary estate including policies of assurance gives him no lien except for interest on the policy moneys (s). Any money received by a creditor on a policy given by his (o) Gottlieb ^.Cranoh, 22 L. J. Ch. 912. Mutual Life Assurance Co., L. £. 14 (p) Courtenay v. Wright, uii supra. Eq. 4 ; Gill v. Downing, L. R. 17 Eq. {g) Triston v. Hardey, 14 Beav. 232 ; 316 ; Norris v. Caledonian Insurance Drysdale v. Piggott, 25 L. J. Ch. 878. Co., L. E. 8 Eq. 127. (r) Spearman v. British Empire (s) Me Waugh's Trusts, 25 W. E. 655. COLLATERAL SBCUMTIKS. 407 debtor as collateral security for a debt, or to which the debtor would be entitled on payment of the debt, is an absolute or pro tanto discharge of such debt ; the same rule obtains where the creditor is himself the insurer, and in such case the insm'er is in the same position as any other creditor who might have been similarly secured. Accordingly, where a company advanced £1,000 on the borrower insuring his life for that amount in their office and depositing the policy as an equitable mortgage, and giving a further security by mortgage on real property, and the policy was conditioned to be void by suicide of the assured, unless to the extent of any hondjide interest vested therein at the death in some other person for valuable consideration, it was held that the company was within this ejcqeption, and that by the suicide of the assured the policy was not avoided, conse- quently that the' debt to the company was discharged, and that the representatives of the deceased were entitled to a reassign- ment of the other securities held by the company (t). Where a bill of sale of mill fixtures contained a covenant to inSurfe on the part of the grantor, but no provision was made as to the application of the policy moneys, and the premises were burnt down, it was decided that the grantee of the bill had no title to the policy moneys (u). We may here advert to the assignment, delivery up, or cancellation of securities, when the debt secured is transferred or paid off. We may begin with an important enactment relating to sureties and co-debtors. By the Mercantile Law Amend- ment Act it is provided that every person who, 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 bo (0 White V. British Empire Mutual (u) Lees v. Whiteley, L. E. 2 Eq. ] 43. Life Assurance Co., L. E. 7 Eq. 374. 408 MlSCELLANEOtrS. entitled to stand in the place of the creditor, and to .use all the i-omedies, and, if need be, and upon a proper indemnity, to use the name of the creditor in any action or other proceeding at law, or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor as the case may be, indemnification for the advances made and the loss sustained by the person who shall have so paid such debt, or performed such duty, and such payment or performance, so made by such surety, shall not be pleadable in bar of any action or other pro- ceeding by him, provided always 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 persons shall be justly liable («). Under this provision (which is held to extend to a contract entered into before the Act provided a breach thereof, and pay- ment is made by the surety after the Act) (3/), it has been decided that a co-debtor who has paid the entire debt due on a judgment against himself and others, is entitled to an assign- ment of the judgment, although it be thereby satisfied {z) ; in fact, one of the very object's of the enactment was to sweep away the technicality which prevented a satisfied bond or judg- ment from being ever after put in suit, and to keep such a bond or judgment. alive for the benefit of a surety or joint debtor. Under what circumstances it might be necessary or advisable for a co-debtor or surety to sue in the name of, or jointly with, the creditor on any security held for the debt is doubtful ; formerly, the rule in Chancery, as far as equitable assignments were concerned, was that the assignor of a judgment was a necessary party to a suit by the assignee, notwithstand- ing an express power of attorney {a), but that the assignor {x) S. 5, 19 & 20 Vict. c. 97 ; In re N. S. 130C ; 9 C. B. N. S. 543 ; In re Kirkwood's Estate, 1 L. E. Ir. 108. Swan's Estate, I. K. 4Eq. 209. iy) In re Cochrane's Estate, L. K. 5 (a) Catchart v. Lewis, 7 Ves. 463 ; ^1- 209. Partington v. Bailey, 6 L. J. Ch, 179. (?) Batchellor v. Lawrence, 6 Jur, COLLATERAL SECURITIES. 409 of a bond was not a necessary party to a suit by the assignee, unless in exceptional cases (h). A creditor who holds several securities for his debt, partly given by the principal debtor and partly by a surety, must retain all securities given by the principal debtor for the benefit of the surety, and if he neglects to do so he discharges the surety (c) ; thus, it appears that as between creditor, principal debtor, and surety the law is sufficiently explicit in fixing the right to the debt and the right to all securities therefor in the same hands. And the same rule obtains, though to a less extent on the one hand, as between the assignor and assignee of an assigned debt, or, on the other hand, as between the debtor and creditor of a satisfied debt (d). An assignment of a debt carries the securities, and in some cases the assignment of a security will carry the debt, and where there are several securi- ties for the same debt, an assignment or gift by the creditor of one security is an assignment or gift of the debt, and neither the creditor nor his representatives can be permitted to set up the other securities for the purpose of defeating that assign- ment, but those who hold the collateral securities become trustees for the assignee or donee of the debt (e). Again, when a debtor dischfi.rges a debt, lie is entitled to a re-assignment of his securities directly affecting property, but not to a delivery up of his personal securities, unless they be valuable to him, or might be made the subject of hostile proceedings. Thus, on the discharge of a debt secured by a mortgage or pawn, the debtor becomes entitled to an imm.ediate re-transfer of the property mortgaged or pawned, nor can a mortgagee who is being redeemed retain any of his securities to answer contingent liabilities of the mortgagor to him, in the absence of an express agreement to that effect ; hence, a security to be held as long as any debt shall be due, or growing due, cannot be retained to answer the contingent liability of the mortgagor as drawer or (jb) Brace i). Harrington, 2 Atk. 235; (d) Merchanta' Bank of London v. Turquand v. Fearon, L. E. i Q. B. D. Maud, 18 W. K. .312. 280. (c) Duchess of Buceleugh v. Iloare, 4 (c) Ante, p. 102. Mad, 476. 410 MISCELLANEOUS. indorser of a current bill (/). So, it is a principle that the mortgagee should be in a condition to return the mortgaged property in statu quo ante when paid the debt, and that if he cannot do this, he will not be allowed to proceed for the debt on any other security he may have; thus, A. gave B. certain promissory notes and a mortgage as collateral security for the purchase-money of the mortgaged estate of which B. was the vendor; 0. on receiving an assignment of the mortgage dis- counted the notes for B. ; by a subsequent agreement, A. sold all his interest in the property mortgaged to B., and B. under- took to cancel the notes ; subsequent to that agreement, C. re- assigned the mortgage to B. in consideration of £4000, without prejudice to any right or remedy on the notes which still re- mained in his (C.'s) hands ; after that, C. brought an action on one of the notes against A., whereupon A. applied for an injunc- tion to restrain C. from prosecuting the action pending a suit instituted by A. for redemption ; C. had had notice of A. and B.'s dealings, but A. had had no notice of B. and C.'s dealings ; under these circumstances it was held that the application must be granted (gr), as C. by assignment occupied the same position as a mortgagee, and every mortgagee is charged with a re- conveyance to the mortgagor of the property mortgaged on payment of the mortgage debt Qi). As regards personal securi- ties, such as bonds, bills, notes, &c., the right of a debtor to a re-delivery or cancellation depends in the first place upon whether he himself, or some third person, is liable to be sued thereon. A person who is obligee on a bond, or payee of a bill or note, may assign over the bond, bill, or note as a security for a debt due by himself; in such case, on payment of the debt, the bond, bill, or note must, of course, be re-assigned to the debtor, for to him it has a value the same in kind as corporeal property. If, however, a debtor give his own bond, bill, or note (/ ) Merchants' Bank of London v. (h) Palmer v. Hendrie, and cases Maud, uU supra. cited, ante, p. 392. Sohoole and Wife ((/) Walker v. Jones, L. R. 1 P. C. v. Sail, 1 Sch. &, Lef. 176. 50. COLLATERAL SECURITIES. 411 as security for a debt, then the right to a delivery up of the instrument on payment of the debt depends upon the nature of the instrument ; thus, an obligee is not bound to re-deliver the bond on payment of the debt due thereon by the obligor (i), nor can the maker of a non-negotiable note (Jc), nor the acceptor of a bill payable to order, but not indorsed (I), refuse payment because the note or bill is not re-delivered. On the other hand, payment on a negotiable bill or note might have been refused, except on re-delivery to the person called upon to pay (m) ; this was the absolute rule at Common Law, but Courts of Equity (n), and recently, by a legislative enactment (o). Courts of Law, and now, every branch of the Supreme Court, and every Inferior Court having equitable jurisdiction (p), permit the payee or indorsee of a lost negotiable instrument to recover thereon on giving a suitable indemnity to the party compelled to pay. Upon the difference in status between the transferee of a merely assignable, and the transferee of a negotiable chose in action, was based the right to a re-delivery as above explained. A debt may be transferred by gift as well as by assign- ment for valuable consideration ; so, it may be discharged by voluntary cancellation as well as by actual payment, and, as in the case of an assignment or satisfaction for value, so, in the case of a voluntary transfer or discharge, the debt carries the securi- ties, of which, therefore, the donee or forgiven debtor, respect- ively, has a right to have a delivery (q). The donation of a debt may be effected (1) by act inter vivos, (2) by donatio inortis causa, or (3) by will, and in either of these ways, as well as by other means, it may also be cancelled. (1.) No voluntary transfer of a debt can avail, unless the gift be complete or unless the intended donee has a binding (i) Binna v. Fisher, 43 L. J. Ch. 188. L. E. 6 C. P. 466. (i) "Wain v. Bailey, 10 A. & E. 616. (n) Walmsley v. Child, 1 Ves. 345. (I) Rolt V. Watson, 4 Bing. 273, 9 & (o) S. 87, 17 & 18 Vict. e. 125. 10 Will. in. i;. 17, s. 3. (p) S. 26, sub-s. 11, ss. 89- 91, 30 & (m) Redmayne v. Burton, 2 Q. T. N. 37 Vict. c. 66. S. 324 ; M'Donnell v. Murray, 9 Ir. (q) Elower v. Marten, 2 My. & Or. C. L. R. 495 ; King v. Zimmerman, 469. 412 MISCELLANEOUS. trust in the debt ileclared in his favour, for the Court does not interfere on behalf of volunteers claiming under an im- perfect grant or conveyance (/■). At Common Law, as we liave said (s), no debt or chose in action, except negotiable bills of exchange and promissory notes, vras capable of assign- ment ; but now all debts are assignable either in the manner pointed out by the Judicature Act (t) or in the modes for- merly admitted by the Court of Chancery (u). If a debt be transferred to a donee according to the provisions of the above statute, it is conceived that the gift is «jJso/acio complete, but, if the transfer be a mere equitable assignment, the gift cannot become complete until it is perfected by notice to the debtor or by some other act which the Court deems sufficient entirely to divest the donor of the debt and vest the same in the donee (x) ; thus, where the obligee of a bond five days before death indorsed a memorandum on the bond which purported to assign it to a person to whom it V)'as at the same time delivered, it was held that the gift was incomplete, although the intention of the donor was beyond dispute (y): So, where a man on his death-bed made his wife a present of certain certificates of railway stock, which he then handed to her, it was decided that the gift was incomplete, and could not stand against the donors' execu- tors {2). In fact, no gift is complete unless the donee could institute proceedings to compel the donor to make it good ; the right to take such a step is a fair test of the validity of a donation (a). A debt may, however, be transferred by a clear declaration of trust on the part of a creditor in favour of a given person, and once the language and intention are imambiguous, (r) Ellison v. Ellison, 6 Ves. G56 ; &G. l/'G), if the interest be running, but M'Askie J'. M'Kay, L K. 2Eq. 447. not if it be in possession, Brido;e v. (s) Ante, p. 301, Bridge, 16 Beav. 315 ; I. W. & T. L. («) S. 25, sub-s. 6, 36 & 37 Vict. u. 66. C, 5tli ed., 309, et seq. Ante, p. 315, et seq. (y) Edwards v. Joce.", 1 My. & Cr. (u) Ante, p. 302, et seq. 256. (x) The distinction lias been taken (s) Moore v. Moore, L. K. 18 Eq. that a voluntary assignment of an equi- 474. table interest is good without notice (n) Ibid, (Kekewich v. Manning, 1 De G. M, COLLATERAL SBCUEITIES. 413 a trust is raised and complete without other formality ; thus, it is easier to transfer a debt by voluntary declaration of trust than by absolute gift, and hence many transactions which failed as gifts because incomplete have been vipheld as well created trusts. Indeed, so far was this substitution carried that it vvas at length considered that by the mere fact of an assignment the assignor constituted himself a trustee for the intended donee of a debt, which did not pass as a gift (6) ; thus, the following memorandum, " I hereby give and make over to Dr. Morris an India bond," was construed by Lord Romilly to mean, " I under- take to hold the bond for you," and so availed as a declaration of trust (c). But the class of cases to which Morgan v. Malle- son belongs, can hardly be any longer regarded as a true exposi- tion of the law, for recently the doctrine in Edwards v. Jones, and the earlier authorities (d) has been fully vindicated, and it has been decreed that an intention to make an immediate gift is inconsistent with a declaration of trust (e) ; accordingly, where the owner of a lease of a mill indorsed and signed the fol- lowing memorandum on the lease: — "7th March, 187 3. — Thisdeed and all thereto belonging, I give to Ed. Bennett Kichards from this time forth, with all the stock-in-trade. — John Delbridge," and then handed over the lease to a third person, on behalf of Ed. Bennett Richards it was held that the transfer could not avail as a gift, because there was no sealed instrument (/), nor as a declaration of trust because the intention was to make an immediate gift ((/). The judgment of Sir George Jessel contains these pertinent observations: — "A man may transfer his pro- perty without valuable consideration in one of two ways : he may either do such acts as amount in law to a conveyance or assignment of the property, and thus completely divest himself (J) Kekewict v. Manning, 4 De G-. (c) Moore v. Moore, L. E. 18 Eq. M. & G. 176; Richardson i). Richardson, 474 ; Warriner v. Rogers, L. R. 16 Eq. L. R. 3, 681. 310. (c) Morgans. Malleson, L. R. 10 Eq. (/) Richards v. Delbridge, L. R. 18 475. Bq.ll. (d) Milroy v. Lord, 4 P. F. & J. 26 1 ; (^) AnU, p. 314. Autrobus V. Smith, 12 Ves. 39. 414 MISCELLANEOUS. of the legal ownership, in which case the person who by those acts acquires the property takes it beneficially or on trust, as the case may be ; or the legal owner of the property may by one or other of the modes recognised as amounting to a valid declara- tion of trust constitute himself a trustee, and without an actual transfer of the legal title may so deal with the property as to deprive himself of its beneficial ownership and declare he will hold it from that time forward on trust for the other person. It is true he need not use the words, " I declare myself a trustee," but he must do something which is equivalent to it, and use ex- pressions which have that meaning, for however anxious the Court may be to carry out a man's intention, it is not at liberty to construe words otherwise than according to their proper mean- ing" (h). In the foregoing case there was a mode of transfer- ring the legal ownership in the subject of dominion, and accord- ingly the Master of the Eolls addressed himself to a contrast between the transfer by a legal conveyance and by a declaration of trust ; supposing, however, the subject of dominion is itself an equitable estate or interest, or does not admit of transfer at Common Law, though it may be assigned in Equity, the same contrast it is submitted should subsist between the transfer by equitable assignment and by declaration of trust ; therefore, for the gift of a debt it would seem necessary that the donor should either execute a complete statutory or equitable assignment, or else declare an explicit trust in favour of the donee (i). (2.) For the donation of a debt by a donatio mortis causa, it is in all cases necessary that the debt should be secured by some instrument or corporeal thing, for otherwise, as a debt is an incor- poreal thing, there could be no manual delivery, which is abso- lutely essential to this mode of transfer. At the same time it is not every instrument securing a debt which can operate by its delivery as a donatio mortis causa ; thus, the delivery of receipts {h) Kichards v. Delbridge, L. K. IS (i) Edwards v. Jones uii supra; Eq.il. See also Moore «. Ulster Bank, Moore v. Moore, «Js supra; Jones It). I. E. 11 C. L. 512; KeUy v. Walsh, Lock, L. R. 1 Ch. 25; Heartley v. 1 L. K. Ir. 275, Nicholson, L. E. 19 Eq. 233. COLLATERAL SECUBITIES. 415 for South Sea annuities (k), of certificates of railway stock (l), or of a cheque on a banlier (m), even when accompanied with the donor's pass book (n), if the cheque be not presented before the donor's death, cannot avail as a donatio mortis causa of the annuities, stock or money payable on the cheque respectively, and, in general, a delivery by symbol is not sufScient to effect a valid donatio mortis causa (o). If, however, a cheque delivered as a donatio mortis causa be made payable to the donee or order, and be indorsed over by such donee for valuable consideration during the donor's life, although there be no presentation till after the donor's death ( p ), or be presented before the donor's death, then the gift is complete, even though the cheque be not cashed till after the donor's death (q), otherwise, as a cheque is but a personal authority to a man's bankers to pay a certain sum, it is revoked by the drawer's death, and cannot be enforced by the donee (i*). When a man on his death-bed gives to another an instrument such as a bond or promissory note or an I U, he gives a chose in action, and the delivery of the instru- ment confers upon the donee aU the rights to the chose in action arising out of the instrument (s) ; bills or notes, therefore, whether negotiable or payable to order (f) and unindorsed (tt), bonds(a;),1 Us, bankers'deposit notes (2/),policies of insurance(2;), and the mortgage deeds of real estate (a), have been all held capable, when duly delivered, of supporting a good donatio mortis causa of the particular debt they respectively secured, A donatio mortis causa is a gift made by the donor in imme- diate contemplation of death by delivering to the donee or some (k) Ward v. Turner, 2 "Ves. 431. 309. (() Moore v. Moore, ubi supra. (a) Veal v. Veal, 27 Beav. 303. (m) Tate v. Hilberfc, 2 Ves. Jun, 111. (x) Snellgrove v. Baily, 3 Atk. 214. («■) Beak *. Beak, L. E 13Eq. 489. (y) Hewitt v. Kaye, ubi supra; (o) Gardner v. Parker, 3 Madd. 185. Moore v. Ulster Bank, I. R. 11 Eq. (p) Rolls V. Pearce, L. R. 5 Oh. D. 512 ; Dunne v. Boyd, I. R. 8 Eq. 609 ; 730. M'Gounell ■•/. Murray, I. R. 3 Eq. (?) Bromley v. Bninton, L. R. 6 Eq. 460. 275. (2) Amis v. Witt, 33 Beav. 619. (r) Ante, p. 20. (a) Duffield o. Elwes, 1 Bligh, N. S. (s) Hewitt V. Kaye, L. R. 6 Eq. 198. 497. (i) Rankin v. Weguelin, 27 Beav. 416 MISCELLANEOUS. person on his behalf the subject of gift; and, according to the form and words used, such gift takes effect so as to vest the property in the donee either immediately, or only upon the death of the donor, but whether immediate or deferred, the gift will be defeated by recovery of the donor. The conditions of a valid donatio mortis causa are : (1") that the gift be made by the donor in immediate contemplation of death, that is, when he is suffering from some malady or attack which he believes will prove fatal and the same does prove fatal ; (2°) that the gift is intended to be absolute only in the event of the donor's death ; (8°) that possession of the thing given be actually de- livered by the donor to the donee or some third person on his behalf, and not merely to the agent of the donor (Jb). When a gift fails as a donatio viortis causa, it may sometimes avail as a declaration of trust by the donor in favour of the donee, but only under such circumstances as a similar transaction inter vivos would avail as such declaration ; upon this point our pre- vious observations as to the inconsistency of an immediate intention to give with a declaration of trust are fully applic- able (c). (3.) The donation of a debt by will presents no difficulty; the executors will be bound to assign to, or hold the debt in trust for, the legatee according to the terms of the bequest (d). The cancellation of a debt may, as we have said, be effected by a gift thereof to the debtor in any of the modes above described ; thus, where a bond debt was given by the will of the obligee to the obligor it was held that the debt was extinguished (e) ; so, the following entry in one of the obligee's books : " Pye pays no interest, nor shall I ever take the princi- fial unless greatly distressed," was held a conditional discharge of the bond debt due by Pye, which by the obligee's death became ab.solute (/); so, the legatee of £1,000 was held discharged from bond debts to the amount of £1,900 which he had incurred to (i) Farquharson v. Cave, 2 Coll. 350, (cZ) Sidney v. Sidney, L. R. 17 Eq. 65. 367. (e) Hamilton v. Lloyd, 2 Ves. J. Uo' (c) Ante, pp. 412—414. (/) Aston r. Pye, & Ves. 350 ». CX)LLATERAL SECURITIES. 417 the testator on evidence in accounts, letters and memorandums in the testator's handwriting, that the debts had been for- given (g) ; but where a testator declared to his executor that he did not intend to enforce a promissory note, it was held that the maker of the note was not discharged (h), whilst a residuary- legatee whom the testator in a conversation shortly before death ordered not to proceed upon a bond was restrained from suing thereon, on the ground that the testator had made him a trustee thereof for the debbor, and that in instituting proceedings he was guilty of fraud (i). In considering the effect of declara- tions in extinguishing debts the difference between a statement of fact and of mere intention must be carefully borne in mind (/c) ; it should also be observed that a release of debts by will may speak either from date thereof or from the death of the testa- tor (T), and that the precise debt released can only be ascertained from the particular language used (m). Besides a gift of the debt to the debtor by act inter vivos, do7iatio mortis caiisd, or will, there are several other ways whereby a voluntary cancella- tion may be worked; thus, the giving up of a bond by the obligee to the obligor is in law an extinguishment of the debt (n) ; so, where the representatives of a deceased creditor whose debt was secured by a policy given by the debtor agreed to deliver up the same to the latter in consideration of his paying the probate and legacy duty on the debt, it was held that, on a return of the policy in pursuance of such agi-eement, the debt was discharged ; and it would appear that, although the giving up of a security is not in itself a release of the debt, yet when- it is given up with a clearly expressed intention of releasing the debt, it may amount to A release even at law, and that notwith- standing the rule that where there is no release of a debt at law there is none in equity, yet there may be considerations which (S») Eden v. Smyth, 5 Ves. 341. Williams, L. E. 1 Eq. 184. {h) Bym v. Godfrey, 4 Vea. 6 ; Cross {I) Everett «. Everett, L. R. 7 Ch. V. Cross, 1 L. R. Jr. 389. D. 428. (i) Wekett v. Raby, 2 Bro. P. C. (m) Ex parte Kirk ; In re Bennett, 386. L. R. 5 Ch. D. 800. (h) Ante, p. 385. See also Yeomans v. (m) Whitlook v. Walham, 1 Salk. 157. E E 418 MISCELLANEOUS. would prevent a debt from being enforced in equity although subsisting at law (o). Again, if a mortgage be found cancelled in the possession of the mortgagee, there is a release just as there would be were the cancelled instrument a bond (p), and any material alteration iu a bond (q), bill of exchange (r), or other instrument containing words of contract, without the concur- rence of the party contracting, will discharge him from all liability thereon, whether such alteration were made by a party to the contract or by a stranger (s) ; thus, the alteration of the date invalidates a cheque and discharges the drawer from liability thereon, although the plaintiff was guilty of no negli- gence in taking it (if). Even an immaterial alteration made by the party who owned the security was formerly sufiScient to vitiate the instrument (u), but that can no longer be regarded as sound law (x) ; therefore an instrument in which an imma- terial alteration has been made, whether by the party entitled to the benefit of the instrument or by a stranger, continues valid. If a security be given not for the payment of money at all events, but for a collateral purpose, the fulfilment of that purpose or the mode in which the party entitled to the security has dealt therewith will or may operate as a cancellation of the security ; thus, where a bond securing £4500 was given by a son to his father, and the true construction of the transaction appeared to be to afford the father a pledge for the son's good conduct, and the father had before his death expressed himself satisfied with the son's conduct and had never proceeded upon the bond, it was held that the son was released from the debt (y). X. Before dismissing the subject of collateral securities we (o) Taylor 1!. Manners, L.B.lCh. 418. (t) Vance r;. Lowther, L. R. 1 Ex. (p) Harrison v. Owen, 1 Atk. 519. D. 176. (g) Pigot's Case, 11 Co. 26 b. («) Pigot'a Case, ubi swpra; Shep. (r) Master v. Miller, 4 T. E. 320, Touch. 69. I. Sm. L. C, 7lh eJ., 871 ; Hirschman v. (x) Aldous v. Cornwell, L. R. 3 Q. Bndd. L. K. 8 Ex. 171. B. 573. (s) Chitty's Contracts, 10th ed., 718— {y) Flower u. Marten, 2 My. & Cr. 720. 459. COLLATERAL SECURITIES. 419 may say a few words on the relative advantages different securities respectively possess ; we may first contrast securities on property, such as mortgages, pawns, debentures and assign- ments with personal securities, such as bills of exchange, bonds, life policies and judgments. Compared with any personal security which belongs to the class of simple contracts and is not a negotiable instrument, a security on property enjoys a necessary superiority, for, besides a specific lien, it confers also an independent right to sue for the amount secured ; thus, a creditor holding a security on property has the same right of action as a creditor holding a personal security of the above nature, and he has, in addition, the benefit of a charge directly affecting a given subject. A personal security that belongs to the class of contracts under seal, or to the class of contracts of record is sometimes more, sometiraess less, beneficial than a security on property; the former is the case if the property charged be already so heavily incumbered that the security thereon is practically useless, for then the holder of the personal security h«,s over the holder of the security on property all the advantages a specialty or judgment creditor has over a simple contract creditor; so, if the personal security be a jugdmentand the debtor be perfectly solvent, the holder of such security has several advantages over the holder of a perfectly good security on property; thus, he may realise his security by execution much more speedily, and though the debtor be an infant the security is nevertheless valid until the judgment be set aside (z). The latter is the case if the property charged be amply sufficient to cover the amount secured, and that in general whatever the nature of the personal security, for insolvency of the debtor may at any time defeat a personal security but cannot affect a security on property. Formerly, indeed, judgments were charges on the real property of the judgment debtor, but it is now enacted that no judgment entered up after 29th July, 1864, shall affect any land until actually delivered in execution (a). (z) Ante, p. 93. (a) Ante, p. 91. E E 2 420 MISCELLANEOUS. As between themselves securities on different kinds of property depend for their relative vahies on the special circumstances affecting each case ; it may be that a bill of sale of personalty is more valuable than a mortgage of realty, or that an equitable is more valuable than a legal mortgage, either because the property or title in the one case is larger or better than in the other. Cceteris paribus, however, a security on real property is preferable to a security on personal property, and a security that vests the legal to a security that vests only an equitable ownership in the creditor secured. The relative values of personal securities as between themselves is in general determined by the respective classes of contracts to which they belong; thus, a judgment security has several advantages over a security merely under seal, and a security under seal has several advantages over a security in writing not under seaf ; but to this rule negotiable instru- ments are frequently exceptions, for every person who puts his name to a bill or note becomes a surety for its payment (6), and thus the eventual holder may have a better security on the simple contract than he could have' had on any other security, either personal or on property. (J) Ante, pp. 9, 272. 421 CHAPTER XXXII. INTEREST. Money is seldom advanced in the ordinary course of commerce on securities wliich merely provide for repayment of the loan ; as a rule, an additional sum called interest is charged for the accommodation, and this sum, together with the amount or principal upon which it accrues, constitutes the debt secured. Interest heing but an accessory, follows the nature of its princi- pal, and will therefore be barred when the latter is barred (a). There is now no restriction (except under the statutes relating to pawnbrokers) as to the quantity of interest that may be reserved by agreement of the parties, the 17 & 18 Vict. c. 90 having, with the exception above mentioned, swept away all vestige of the limitations once imposed by the laws against usury. So long, therefore, as there is no fraud, stipulations for any specified rate will be enforced. At the same time, a bargain unconscionable in the eye of the law cannot stand, even though it be untainted by fraud (6). Thus, as we have already pointed out, a covenant for a higher amount of interest, in case default be made in payment of a lower amount, cannot be insisted upon, because such a covenant is in the nature of a penalty which it is against the conscience of the Cou rt to execute (c) ; and, generally, all such bargains as no man in his senses and not under delusion (a) Clark o. Alexander, 8 Sc. N. R. & S. 155. See cases cited, ante, p. 64. 147; Partington v. The Attorney- (c) Ante, -p. Ill ; Herbert ?). Salisbury General, L. B. 4 H. L. 122. & Yeovil Ely. Co., L. K. 2 Eq. 221 ; (b) In re. Slater's Trusts, L. R. 11 Chappie v. Mahon, Ir. E. 5 Eq, 225. Ch. D. 227 ; Croft v. Graham, 2 D. J. 422 MISCELLANEOUS. would make, on the one hand, and as no honest and fair man would accept, on the other, are incapable of beiag upheld (d). In the absence of agreement, express (e) or implied, from a course of dealing (/), interest may be recoverable (1st) by the Common Law, (2nd) by statute, (3rd) by the practice of the Court (g). 1st. At Common Law, interest is only payable on certain instruments, of which the following are the principal: — On bills of exchange and promissory notes, from the time tbey fall due (h) ; on bonds conditioned for the payment of money, from the time of the obligor's default (i) ; and in some cases interest may be allowed in excess of the penalty (k) ; on the sum a surety has been compelled to pay through default of his principal (l) ; on an account stated for money lent (m) ; on mortgages, legal or equitable (n). As a general rule no com- pound interest can be recovered, except on a contract or promise in a case of mercantile accounts for mutual transactions (o). 2nd. By 3 & 4 Wm. IV. c. 42, s. 28, in any trial or inquisition of damages the jury are empowered in their discretion to allow interest to the creditor on all debts or sums certain, at a rate not exceeding the current rate of interest from the time such debts or sums were payable, if payable by virtue of some written instrument at a time certain ; or, if payable otherwise, from the time a written demand (p) shall have been made, giving the debtor notice that interest will be claimed from the date of such demand until the term of payment (q) ; but interest is still to (d) Chesterfield v. Jansaen, 2 Ves. (m) Blaney v. Hendricks, 2 Bl. 761. 157, per Hardwicke, L. C. («) Carey v. Doyne, 5 Ir. Ch. R. 104 ; (e) Di Sara v. Phillipps, 10 H. L. C. In re Kerr's Policy, L. E. 8 Eq. 331. 624 ; Gordillo v. WegueUn, L. R. 5 Ch. (o) Fergussont;. Fyffe, 8 CI. & F. 121. D. 287, as to construction of bonds {p) Hill v. S. Staflfordshire Rly. Co., with coupons for half-yearly interest. L. R. 18 Eq. 154. (/) Pim ». Harris, I. K. 10 Eq. 442. (g) The foUowing form of demand ig) In re Day's Estate, I. R. 10 Eq. may be adopted :—" Mr. A. B.— I do 201- hereby demand of you the payment of (h) Page V. Newman, 9 B. & C. 378 ; the debt, amounting to , now due MaxweH v. Tuohill, 1 L. R. Ir. 250. from you to me ; and take notice that (t) Parquhar v. Morris, 7 T. R. 124. I claim interest on the said debt from {k) Mathews i).Keble,L.R. 3 Ch. 691. this day until the debt shall be paid. (0 Petrie v. Duneombe, 20 L. J. Q. Dated this — day of . (Signed) B. 242 ; McKewan's Case, L. R. 6 Ch. 0. D." Chitty on Contract. 10th ed. ^- ^-f?. p. 399. INTEREST. 423 be payable in all cases where it was payable at the commence- ment of the Act (r). Under this section it is not necessary that the day of payment should be mentioned in the written instrument ; it is sufficient if the time or event be fixed, the date of which can be afterwards ascertained (s). Interest after a given day, upon which day principal and interest secured by a written instrument wei;e made payable, can only be given in the nature of damages (t). By 3 & 4 Will. IV. c. 42, s. 29, the jury may give damages in the nature of interest over and above the value of the goods at the time of the conversion and seizure, in actions of trover or trespass de bonis aspartatis ; and over and above the money recoverable in actions on policies of assurance made after the Act was passed {i.e., 14th August, 1833). By 1 & 2 Vict. c. 110, s. 17, every judgment debt carries interest at 4 per cent, per annum from the time of entering up the same, and as a judgment works a merger, interest at a higher rate on the original debt will not be allowed from the entry of the judgment (w), unless there be a special agreement that such higher rate shall continue {x). Interest is allowed on a judgment on account of delay in execution occasioned by pro- ceedings in error ; also where money is paid into Court {y). By Consolidated Order XLII., r. 9, on a decree or order directing an account of the debts of a deceased person, interest will be computed at 4 per cent, per annum from the date of the decree or order ; and by r. 10 a similar rate of interest will be allowed on any debt established under a decree or order before a Judge in Chambers {z). (r) Barrow's Case, L. K. 3 Ck 784 ; [t) Cook v. Fowler, L. R. 7 H. L. 27. Cooper D. Cresswell, L. R. 2 Ch. 112; («) /» re European Central Kly. Co. ; In re Bank of Hindustan, China and Ex parte Oriental Einancial Corpora- Japan, L. R. 15 Eq. 394 ; 'In re Inter- tion, L. R. 4 Ch. D. 33 ; Lancashire and naticinal Co.; Hughes' Claim, L. K. 13 Yorkshire Rly. Co. v. Gidlow, L. R, 7 Eq. 623 ; In re Overeud, Gurney & Co. Ex parte Lintott, L. R. 1 Eq. 484 Harper v. Williams, 4 Q. B. 219 H. L. 567; Wheeler v. Gill, L. R. 19 Eq. 316. {x) In re Agricultural Insurance Co., Mowatt V. Ld. Londesborough, 3 E. & L. R. 4 Ch. D. 34 m. B. 307 ; 4 E. & B. 1. [y] Sinclair v. Great Eastern Rly. Co., (s) Buncombe v. Brighton Club Co., L. R. 6 C. P. 391. L. R. 10 Q. B. 371. (z) Wheeler v. Gill, aupi-a. The most 424 MISCELLANEOUS. 3rd. The general rate when interest is allowed by the Court is 4 per cent, per annum on the debt or money in question, such interest running from the time such debt 'or money was due. Thus, when a sale is set aside on account of the fiduciary rela- tions of the parties, interest at 4 per cent, per annum will be allowed to the purchaser from the time of payment of the purchase money (a). So an equitable mortgagee of a policy, deposited to secure a simple contract debt, was held entitled to 4 per cent, interest both on the debt itself and on the premiums he had paid (6). Sometimes, however, a higher rate is allowed ; thus, where default under a covenant for payment of money was made, interest was allowed at 6 per cent, (c); so, where there is breach of duty and violation of trust (d) and compound interest may be allowed against an accounting party who has employed a sum of money in his own business. There is no general rule as to rate of interest on repayment of consideration money, in an absolute assignment treated only as a security (e). important of other statutes relating to J. 94 ; Acland v, Gaisford, 2 Mad. 28. interest are 3 & 4 Will. IV. c. 27, s. 42, (6) In re Kerr's Policy, L. E. 8 Eq. ante, pp. 135—138 ; 28 & 29 Vict. c. 86 331. [Ex parte Shell ; In re Lonerpan, L. R. (c) Knapp v. Burnahy, 30 L. J. Ch. 4 Ch. D. 789) ; 32 & 33 Vict. c. 71, 844. s. 30 (JEx parte Bronker ; In re Fast- [d) Burdick v. Garrick, L. E. 5 Ch. nedge, L. R. 2 Ch. D. 57). 233 ; Tyrell v. Bank of London, et a!., (a) Calcraft r. Roebuck, 1 Ves. J. 10 H. L. C. 26. 221 ; Child i: Ijord Abingdon, 1 Ves. (e) In re Unsworth, 13 W. R. 448. 425 CHAPTER XXXIII. STAMPS. A GLANCE at the various subjects embraced in the preceding chapters will show that, to the constitution of a security, a written instrument is in general necessary, though there are a few exceptional cases, such as pawns and equitable mortgages by deposit, where writing does not enter into the nature of the security. Securities in writing are almost all subject to revenue duty, which is collected by stamps attached to each particular instrument ; from such duty, however, there are certain general and special exemptions (a),and securitiesfaliingwithin such classes of exemptions, as well as securities not in writing, are excluded from the operation of the stamp laws, which othei-wise extend to securities in general, and therefore demand a separate considera- tion. Up to the year 1871 the legislation by which the stamping of documents was governed had to be sought out from some two hundred and fifty parliamentary enactments (b), whereby duties had at different times been imposed, the consequence being a corresponding diversity in the duties payable, and in the modes of levying them. To remedy the inconvenience and inconsis- tency that thence arose, the Stamp Act (c), the Stamp Duties Management Act (d), and the Inland Eevenue Repeal Act (e), were passed in the year 1870. The last-mentioned statute is a general repeal of the stamp laws formerly in force ; the other (a) Sue post, )p. 431, 432. (c) 33 & 34 Vict. c. 07. (i) 'I'ilsley on Ihe Stamp Laws, 3id [d) 33 &, 34 Vict. c. 98. ed.xv. (e) 33 & 34 Vict. v. t(9. 426 miscp;llaneous. two statutes, together with the Stamp Amendment Act, 1871 (/), form a consolidated digest of the law as it now obtains. The Stamp Duties Management Act regulates the issue of stamps, determines the way in which a licence to deal in stamps may be obtained, and makes the forgery of stamps felony, punishable with penal servitude for life, or for any term not less than iive years, or with imprisonment for any term not exceeding two years. Besides the licensed dealers, the chief office in London, and the head oflSces in Dublin and Edinburgh furnish the direct sources from which stamps may be procured. The Stamp Act consists of 128 sections and a schedule, which is to be read and construed as part of the Act {g). Sections 1 — 6 provide that the Act shall come into operation on the 1st January, 1871, that the instruments specified in the schedule shall be charged with the duties therein specified ; that instru- ments specifically charged by any Act theretofore passed, and not relating to stamp duties, with the duty of thirty-five shillings, shall in future be chargeable only with the duty of ten shillings ; that, in the absence of express provision to the contrary, instru- ments relating to the property of the Crown shall be charged with the same duty as similar instruments relating to property of the subject; and that all stamp duties are to be paid and denoted according to the regulations of the Act. The remaining sections are classified under two heads, viz., (1) general regulations (ss. 7 — 28), which lay down rules applicable to the stamping of all instruments, and furnish a mode whereby the amount of duty payable in any given case may be ascertained ; (2) special regulations (ss. 29 — 128), which deal with the manner in which each individual instrument is to be stamped. Finally, the schedule sets out th& precise duty payable in each several case. Of the matters contained in the special regulations and schedule, as also of the provisions of the Stamp Amendment Act, we are only concerned with such as relate to securities • such relevant matters and provisions we shall transcribe pre- (/) M Vict. c. i. (jr) s. 6, 38 & 34 Vict. c. 97. STAMPS. 4iJ7 sently. In the first place, we propose to state a few leading princi{)les applicable to stamping in general, including, so far as necessary, the general regulations above specified {h). If an instrument requiring to be stamped ('i)be not duly stamped, such unstamped instrument is not admissible as evidence in aii action, except for any part thereof which may not require to be stamped (/c), or in criminal proceedings (i), or for some collateral purpose as bankruptcy (m), though the amount secured by an instrumeot inadmissible for want of a stamp may be recoverable from admissions made of the debt being due (n). The object of the Stamp Acts being to enforce the payment of a tax, an instru- ment originally unstamped or insufficiently stamped may, as a rule, be stamped after its execution on the payment of the unpaid duty and of certain penalties (o) ; but to this rule bills of exchange and promissory notes form exceptions, for these cannot under any circumstances be stamped after execution, except in the following cases : — 1st. Bills and notes drawn or made out of the United Kingdom {p) ; 2nd. Bills and notes written on material, bearing an impressed stamp of sufficient amount, but of improper denomination {q) ; 3rd. Bills of ex- change payable on demand, and liable only to a payment of one penny (r). The' burden of proving an instrument to be un- stamped Hes, in the first instance, on the party who objects to its production, on the ground that it is unstamped. Where there is no evidence on either side, it will be presumed to have been stamped. But, when once satisfactory evidence has been given that at a particular time the instrument was unstamped, there is an end to the presumption of law in favour of its having been (h) See p. 430, et seq. Claim, L. K. 14 Eq. 148. (i) See Griffin v. Weatherley, L. K. (o) .S. 15, 16, 33 & 34 Vict. c. 97 ; 3 Q. B. 753. Clarke v. Boohe, L. R. 3 Q. B. D. 170. (A) Rutty V. Benthall, L. K. 2 C. P. (p) S. 51. 488 ; Matheson v. Ross, 2 H. L. C. 286. {q) S. 53. {D S. 17, 33 & 34 Vict. c. 99. (r) S. 54 ; Coupons do not require a (m) Ex parte Squire; In re Gould- stamp; Enthoven v. Hoyle et al., 21 weU, L. R. 4 Ch. 47 ; Ponsford v. Wal- L. J. C. P. 100, unless they constitute ton, L. R. 3 C. P. 167. promissory notes, see Palmer's Coy.'s (n) In re Teignmouth v. General Preceds., 420 — 423 ; /ji re Uruguay, etc.. Mutual Shipping Association, Martin's Bly. Co., L". R. 11 Ch. D. 372. 428 MISCELLANEOUS. stamped, the onus of proof is shifted, and the party who relies on the instrument must prove it to have been duly stamped (s). To determine whether any and what stamp duty is chargeable on an instrument, the real and true meaning of the instrument must be ascertained, and the actual description given in the instrument itself by the parties is immaterial ; the instrument should be stamped for its leading and principal object (t), and this stamp covers everything accessory to that object ; thus, where an instrument secured £1000, and contained a covenant that of such £1000, £500 should be paid down, and the remaining £500 should be paid in periodical instalments, it was held that no additional duty was payable in respect of such covenant, inasmuch as the same was merely ancillary to the principal object of the security for which the property duty had been paid (u). No objection can be taken to an instrument which, though originally defective in its stamp, appears at the time it is produced in evidence to be duly stamped, for the Court only looks to the instrument itself, and will not allow its validity to be impugned by extrinsic matters («) ; thus, a post-dated cheque or bill of exchange payable to bearer or order on demand, and only stamped as an instrument payable on demand, is admissible in evidence on, or after, the day of its date, though as originally constituted, and as so continuing up to the day of its date, it required an ad valorem stamp as being an instrument payable at a future time {y). So, the following draft — London, 14th Feb., 1873. M. Misa, Esq., 41, Crutched Friars. Please to pay Messrs. Glyn, Mills & Co., or bearer, the sum of nineteen hundred and ninety-nine pounds, three shillings, for bills negotiated to you last post. £1999 3s. F. De Lizardi & Co. (s) Marine Investment Co. v. Havi- (x) Bradlaugh v. De Ein, L. E. 3 0. side, L. E. 5 H. L. 624. P. 286. («) Fisher v. Calvert, 27 W. E. 301. (y) Bull v. O'SuUivan, L. E. 6 Q. B. (u) Limner Asphalte Paving Co. v. 209 ; Gatty v. Fry, L. E. 2 Ex. D. 265 ; Commissioners of Inland Eevenue, L. Clarke v. Eoche, L. E. 3 O. B D 170 E. 7 Ex. 211. STAMPS. 429 was held to fall within the description of " bill of exchange payable on demand," and therefore sufficiently stamped with a one penny stamp, though it had been issued on the day preceding its date ; the grounds of the decision being — 1st. That by the \isage of bill-brokers the amount of the orJer was not payable before the day of its date, and therefore was only really payable as an instrument on demand on that day ; 2nd. That no object was to be attained by post-dating ; 3rd. That the character of the transaction was known to all parties concerned (z). Next, as to the mode of stamping : all stamps are either im- pressed or adhesive ; but, except where express pi'ovision is made to the contrary, all duties are to be denoted by impressed stamps only (a). Amongst the cases in whicli such provision is made are the following ; to denote (1) the sixpenny duty on agreements (b) ; (2) the fixed duty of one penny on bills of exchange payable on demand (c) ; (3) the ad valorem duties upon bills of exchange and promissory notes drawn or made out of the United Kingdom (d) ; (4) the duty upon a notarial act and upon the protest by a notary public of a bill of exchange or promissory note (e) ; (5) the duty in full or in part imposed by the Stamp Act upon policies of insurance (/) ; (6) the duty upon a receipt for money, or for any bill of exchange or pro- missory note for money, amounting to two pounds or upwards (g). In the several foregoing instances, with the exception of the ad valorem duties on bills and notes drawn or made out of the United Kingdom, it is optional to employ either an adhesive or an impressed stamp ; the ad valorem duties on bills and notes drawn or made out of the United Kingdom are required to be denoted by adhesive stamps only. When an instrument is stamped with an adhesive stamp, the same is to be cancelled by the particular person designated in the Stamp Act, writing on or (s) Misa V. Currie, L. R. 1 App. Oas. {d) Ibid., s. 51. 554. (c) Ibid., s. IIG. (a) S. 23, 33 & 34 Viot. c. 97. (/) Ibid., s. 119. (6) Ibid., s. 36. ([/) Ibid., s. 121. (c) Ibid., s. 50. 430 MISCELLANEOUS. across the stamp his name or initials, or the name or initials of his firm, together with the true date of his so writing ; in the ahsence of such caacellation an instrument stamped with an adhesive stamp is not to be deemed duly stamped (h). If an instrument requires a stamp, the same must appear on its face, and for each of several such instruments written on the same material a separate stamp must be employed (i). In the absence of an express provision to the contrary, an instrument relating to several distinct matters is separately chargeable with duty in respect of each of such matters, and an instrument chargeable with ad valorem duty for one consideration is charge- able as a separate instrument for any further or other considera- tion (k). A stamp appropriated by words on its face to a particular description of instrument avails only for such instru- ment, nor can the latter be otherwise validly stamped (I). All the facts and circumstances affecting the liability of any instru- ment to ad valorem duty are required under penalty to be truly set forth in the instrument (m). Where an instrument is chargeable with ad valorem duty in respect of any money in any foreign or colonial currency, such duty shall be calculated on the value of such money in British currency according to the current rate of exchange on the day of the date oif the instru- ment (n). Where an instrument is chargeable with ad valorem duty in respect of any stock or of any marketable security, such duty shall be calculated on the \'alue of such stock or security according to the average price thereof on the day of the date of the instrument (o). Where an instrument coiitains a statement of current rate of exchange, or average price, as the case may require, and is stamped in accordance with such sta,tement, it is, so far as regards the subject matter of such statement, to be deemed duly stamped, unless or until it is shown that such statement is untrue, and that the instrument is in fact insufficiently (h) Ibid., B. 24. (m) Ibid., s. 10. (i) lUd., B. 7. (n) Ibid., s. 11. (i) Ibid., H. 8. (o) Hid., s. 12. (I) Ibid., a. 9. STAMPS, 431 stamped (p). Where the duty with which an instrument is chargeable depends in any manner upon the duty paid upon another instrument, the payment of such last-mentioned duty shall, if application be made to the Commissioners of Inland Revenue for that purpose, and on production of both the instru- ments, be denoted in such manner as the commissioners think fit upon such first-mentioned instrument (q). Any person may require the commissioners to express an opinion whether an instrument is chargeable with duty or with what amount of duty it is chargeable (r), and from the assess- ment of the commissioners an appeal lies to the Exchequer Division of the High Court of Justice (s). The above provision, however, does not extend to an instrument chargeable with duty, and made as a security for money or stock without limit (t). Frauds in relation to adhesive stamps or to any duty are punishable with a general penalty of £50 over and above any particular penalty (u) ; penalties incurred under the Act are recoverable in the Exchequer Division (x). We have said there are certain general and special exemptions from stamp duty ; such exemptions may be classed under three heads, viz. : — I. Exemptions as to matters which have not been brought within the stamp laws, under which fall pawns or equitable mort- gages by deposit unaccompanied by agreement, liens, and other securities, to the constitution of which no writing is required (y). II. Exemptions expressly specified in the Stamp Act; these are : — 1. General, including (1) transfers of shares in the Grovern- ment or Parliamentary Stocks or Funds; (2) Instruments for the sale, transfer, or other disposition either absolutely 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 ; or, 2. Special, that is, exceptions to a rule imposing a given duty in {p) Ibid., a. 13. Ex. D. 46. (?) Ibid., s. 14. (t) Hid., ». 18, sub-s. 4 (b). (r) Ibid., 3S. 18, 20. («) Ibid., s. 25. (s) Ibid., s. 19 ; Hadgett v. Commis- (a;) Ibid., s. 26. sionera of Inland Revenue, L. K. 3 {y) Ante, p. 425. 432 MISCELLANEOUS. a certain class of cases ; such special exemptions will be found under the several headings below (z). III. Exemptions created by particular Acts of Parliament, of which latter the most important are the Bankruptcy (a), the Building Societies (b), the Loan Societies (c), and the Friendly Societies Acts (d). Subject to the above exemptions, Stamp Duty is payable in the mode and to the amount specified in the special regulations and schedule of the Stamp Act, 1870, as amended by the Stamp Amendment Act, 1871 ; these, so far as affecting the matters embraced in the present undertaking, we exhibit alphabetically in the subjoined table. (z) 33 & 34 Vict. c. 97, Seh., post, 38 Vict. c. 42, s. 41. p. 433, et seq. (c) 3 & 4 Vict. c. 110, ss. 9,' 12, 14 : (a) 32 & 33 Vict. c. 71, s. 113 ; 20 & 6 & 7 Vict. c. 91, s. 26. 21 Vict. c. 60, s. 400 ; 19 & 20 Vict. c. (d) 18 & 19 Vict. c. 63, s. 37 ; 38 & 74, s. 184. 39 Vict. c. 60, s. 15,sub-s. 2 ; Jie Eoyal (6) 6 & 7 Will. IV. c. 32, s. 8 ; 37 & Liver Friendly Society, L. E. 5 Eq. 78. TABLE OF STAMP DUTIES. INCOEPORATING THE SPECIAL SECTIONS OP THE STAMP ACT WITH ITS SCHEDULE. Additional or Auxiliary Security, see Bond. Affidavit or Statutory Declaration made under the provisions of 5 & 6 Will. IV. c. 62 . . . .026 Exemptions. (1) Affidavit made for the immediate purpose of heing filed, read, or used in any Court, or before any judge, master, or officer of any Court. (2) Affidavit or declaration made upon a requisition of the commissioners of any public board of revenue, or any of the officers acting under them, or required by law, and made before any justice of the peace. (3) Affidavit or declaration which may be required at the Bank of England or the Bank of Ireland to prove the death of any proprietor of any stock transferable there, or to identify the person of any such proprietor, or to remove any other impediment to the transfer of any such stock. (4) Affidavit or declaration relating to the loss, mutilation, or defacement of any bank note or bank post bill. (5) Declaration required to be made pursuant to any Act relating to marriages in order to a marriage without a licence. Agreement or Contract, accompanied with a deposit, see Mortgage, ^c, and s. 105. 434 TABLE OF STAMP DUTIES. Agreement, or any Memorandum of an Agreement, made in England or Ireland under hand only, or made in Scotland without any clause of registration, and not otherwise specificaUy charged with any duty, whether the same he only evidence of a contract, or obligatory upon the parties from its being a written instrument .006 Mcemptions. (1) Agreement or memorandum the matter whereof is not of the value of £5. (2) Agreement or memorandum for the hire of any labourer, artificer, manufacturer, or menial servant. (3) Agreement, letter, or memorandum made for or relating to the sale of any goods, wares or merchandise. (4) Agreement or memorandum made between the master and mariners of any ship or vessel for wages or any voyage coastwise from port to port in the United Kingdom. S. 36. The duty of sixpence upon an agreement may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the agreement is first executed. Allotment, see Letter of Allotment. Annuity, see Bond, Covenant, dee.. Conveyance on Sale, ss. 72, 75, Mortgage, s. 108. Assignment or Assignation, see Conveyance, Mortgage, ^c, and ante, p. 326. Assurance, see Policy. Attorney, see Letter or Power of Attorney, Warrant of Attorney. Back Bond, see Mortgage. Bank Note — For money not exceeding £1 . 5 Exceeding £1 and not exceeding £2 . . 10 )> 2 „ 5 . . 1 3 7J 5 „ 10 . . 1 9 97 10 „ 20 . 2 i> 20 „ 30 . . 3 >J 30 „ 50 . . 5 >3 50 „ 100 . . 8 6 TABLE OF STAMP BUTIES; 435 S. -15. The term " banker " means and includes any corporation, society, partnership, and persons, and every individual person carrying on the business of banking in the United Kingdom. The term " bank note " means and includes — (1) Any bill of exchange or promissory note issued by any banlcer, other than the Governor and Company of the Bank of England, for the payment of money not exceeding one hundred pounds to the bearer on demand ; (2) Any bill of exchange or promissory note so issued which entitles or is intended to entitle the bearer or holder thereof, without indorsement, or without any further or other indorsement than may be thereon at the time of the issuing thereof, to the payment of money not exceeding one hundred pounds on demand, whether the same be so expressed or not, and in whatever form, and by whomsoever such bni or note is drawn or made. S. 46. A bank note issued duly stamped, or issued unstamped by a banker duly licensed, or otherwise authorised to issue unstamped bank notes, may be from time to time re-issued without being liable to any stamp duty by reason of such re-issuing. S. 47. (1) If any banker, not being duly licensed or otherwise authorised to issue unstamped bank notes, issues or causes or permits to be issiied, any bank note not being duly stamped, he shall forfeit the sum of fifty pounds. (2) If any person receives or takes any such bank note in payment or as a security, knowing the same to have been unstamped contrary to law, he shall forfeit the sum of twenty pounds. Bank Post Bill, see Affidavit, Exemptions. Bankeie's Deposit Eeoeipt Notes, see Receipt, and ante, pp. 38, 39. Bill of Exchange — Payable on demand . . . . . .001 Bill of Exchange of any other kind whatsoever {except a Bank Note), and Peomissoey Note of any kind whatsoever {except a Bank Note) drawn, or expressed to be payable, or actually .paid, or endorsed, or in any manner negotiated in the United Kingdom : , Where the amount or value of the money for which the bUl or note is drawn or made does not exceed £b ...■■■ Exceeds £6 and does not exceed £10 10 „ 25 . F F 2 1 2 3 £ s. d. exceed £50 . 6 75 . 9 100 . 1 436 TABLE OF STAMP DUTIES. Exceeds £25 and does not 50 75 „ 100 For every £100, and also for any fractional part of £100 of such amount or value . . .010 Exemptions. (1) Bill or note issued by the Governor and Company of the Bank of England or Bank of Ireland. (2) Draft or order drawn by any banker in the United Kingdom upon any other banker in the United Kingdom, not payable to bearer or to order, and used solely for the purpose of settling or clearing any account between such bankers. (3) Letter written by a banker in the United King- dom to any other banker in the United Kingdom, directing the payment of any sum of money, the same not being payable to bearer or to order, and such letter not being sent or delivered to the person to whom payment is to be made, or to any person on his behalf. (4) Letter of credit granted in the United Kingdom authorising drafts to be drawn but of the United Kingdom payable in the United Kingdom. (5) Draft or order drawn by the Paymaster-General (35 & 36 Vict. c. 44). (6) Warrant or order for the payment of any annuity granted by the Commissioners for the Reduction of the National Debt, or for the payment of any dividend or interest on any share in the Govern- ment or Parliamentary Stocks or Funds. (7) Bill drawn by the Lords Commissioners of the Admiralty, or by any person under their authority ; under the authority of any Act of Parliament upon and payable by the Account- ant-General of the Navy. (8) BiU drawn (according to a form prescribed by her Majesty's orders by any person duly authorised to draw the same) upon and payable out of any public account for any pay or allow- ance of the army or other expenditure con- nected therewith. (9) Coupon or warrant for interest attached to and issued with any security. TABLE OF STAMP DUTIES. 437 S. 48 (1) The term " bill of exchange " for the purposes of this Act includes also draft, order, cheque, and letter of credit, and any document or writing (except a bank note) entitling or purporting to entitle any person, whether named therein or not, to payment by any other person of, or to draw upon any other person for, any sum of money therein mentioned. (2) An order for the payment of any sum of money by a biU of exchange or promissory note, or for the delivery of any bill of exchange or promissory note in satisfaction of any sum of money, or for the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or contingency, which may or may not be performed or happen, is to be deemed for the purposes of this Act a bill of exchange for the payment of money on demand (a). (3) An order for the payment of any sum of money weekly, monthly, or at any other stated periods, and also any order for the payment by any person at any time after the date thereof of any sum of money, and sent or delivered by the person making the same to the person by whom the payment is to be made, and not to the per- son to whom the payment is to be made, or to any person on his behalf, is to be deemed for the purposes of 'this Act a bill of exchange for the payment of money on demand. S. 49 (1) The term " promissory note " means and inchides any document or writing (except a bank note) containing a promise to pay any sum of money. (2) A note promising the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or contingency which may or may not be performed or happen, is to be deemed for the purposes of this Act a promissory note for the said sum of money. S. 50. The fixed duty of one penny on a bill of exchange for the payment of money on demand may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the bill is signed before he delivers it out of his hands, custody or power. S. 51. (1) The ad valorem duties upon bills of exchange and promissory notes drawn or made out of the United Kingdom are to be denoted by adhesive stamps. (a) Fisher v. Calvert, 27 W. K. D. 686 ; Ex parte SheUard, L. E. 17 301; Brice v. Bannister, L. R. 3 Q. B. Eq. 109, overruled. D. 569 ; Buck v. Kobson, L. R. 3 Q.B. 438 TABLE OF STAMP J)UTIES. (2) Every person into whose liands any such bill or note eonies in the United Kingdom before it is stamped shall, before he presents for payment, or indorses, or transfers, or in any manner negotiates or pays such bill or note, affix thereto a proper adhesive stamp or proper adhesive stamps of sufficient amount, and cancel every stamp so affixed thereto. (3) Provided as follows : (a) If at the time when such bill or note comes into the hands of any bcmd fide holder thereof there is affixed thereto an adhesive stamp effectually obliterated, and purporting and appearing to be duly cancelled, such stamp shall, so far as relates to such holder, be deemed to be duly cancelled, although it may not appear to have been so affixed or cancelled by the proper person. (h) If at the time when any such bill or note comes into the bands of any bond fide holder thereof there is affixed thereto an adhesive stamp not duly cancelled, it shall be competent for such holder to cancel such stamp as if he were the person by whom it was affixed, and upon his so doing such bill or note shall be deemed duly stamped, and as valid and available as if the stamp had been duly cancelled by the person by whom it was affixed. (4) But neither of the foregoing provisions is to relieve any person from any penalty incurred by him for not can- celling any adhesive stamp. S. 52. A bill of exchange or promissory note purporting to be drawn or made out of the United Kingdom is, for the purposes of this Act, to be deemed to have been so drawn or made, although it may in fact have been drawn or made within the United Kingdom. S. 53. (1) Where a bill of exchange or promissory note has been written on material bearing an impressed stamp of sufficient amount but of improper denomination, it may be stamped with the proper stamp on payment of the duty, and a penalty of forty shillings if the biU or note be not then payable according to its tenor, and of ten pounds if the same be so payable. (2) Except as aforesaid, no bill of exchange or promissory note shall be stamped with an impressed stamp after the execution thereof. S. 54. (1) Every person who issues, indorses, transfers, negotiates, presents for payment, 'or pays any bill of exchange or TABLE OF STAMP DUTIES. 439 promissory note liable to duty and not being duly stamped shall forfeit the sum of ten pounds, and the person who takes or receives from any other person any such bill or note not being duly stamped either in payment, or as a security, or by purchase or otherwise, shall not be entitled to recover thereon, or to make the same available for any purjoose whatever. (2) Provided that if any bill of exchange for the payment of money on demand, liable only to the duty of one penny, is presented for payment unstamped, the person to whom it is so presented may affix thereto a proper adhesive stamp, and cancel the same, as if he had been the drawer of the bill, and may, upon so doing, pay the sum in the said bill mentioned, and charge the duty in account against the person by whom the biU was drawn, or deduct such, duty from the said sum ; and such bill is, so far as respects the duty, to be deemed good and valid. (3) But the foregoilig proviso is not to relieve any person from any penalty he may have incurred in relation to such bill. S. 55. When a bill of exchange is drawn in a set according to the custom of merchants, and one of tbe set is duly stamped, the other or others of the set shall, imless issued or in some manner negotiated apart from such duly stamped bill, be exempt from duty ; and upon proof of the loss or destruction of a duly stamped bill, forming one of a set, any other bill of the set which has not been issued or in any manner negotiated apart from such lost or destroyed bill may, although unstamped, be admitted in evidence to prove the contents of such lost or destroyed bUl. Bill of Lading of or for any goods, merchandise, or effects to be exported or carried coastwise . . . .006 S. 56. (1) A bill of lading is not to be stamped after the execution thereof. (2) Every person who makes or executes any bill of lading not duly stamped shall forfeit the sum of fifty pounds. Bill of Sale, see Conveyance on Sale, General Exemptions, Mortgage. Bond, see Conveyance on Sale, Mortgage, 440 TABLE OF STAMP DUTIES. Bond, Covenant, or Insthument of any kind whatsoever. (1) Being the only or principal or primary security for any annuity (except upon the original crea- tion thereof by way of sale or security), or of any sum or sums of money at stated periods, not being interest for any principal sum secured by a duly stamped instrument, nor rent reserved by a lease or tack. /^he same «xi For a definite and certain period, so that the IsaJoi-eiji duty total amount to be ultimately payable can( ^YenanT for be ascertained i amount *"'*' Por the term of life or any other indefinite period ....... For every £5, and also for any fractional part of .£5, of the annuity or sum periodi- cally payable . . ... 2 6 (2) Being a collateral, or auxiliary, or additional, or substituted security for any of the above- mentioned purposes where the principal or primary instrument is duly stamped. Where the total amount to be ultimately, payable can be ascertained . The same twZ valorem duty as a bond or covenant of the same kind for such total ^amount. In any other case : For every £5, and also for any fractional part of £5 of the annuity or sum periodically payable 6 Building Society, see General Exemptions, Mortgage. Chaetee-Paety, or any agreement or contract for the charter of any ship or vessel, or any memorandum, letter, or other writing between the captain, master, or owner of any ship or vessel and any other person, for or relating to the freight or conveyance of any money, goods, or effects on board of such ship or vessel 6 S. 66. The duty upon an instrument chargeable with duty as a charter-party may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the instrument is last exe- cuted, or by whose execution it is completed as a binding contract. S. 67. Where any document chargeable with duty as a charter- party, and not being duly stamped, is first executed out of the United Kingdom, any party thereto may, within ten days after it has been first received in the United Kingdom, and before it has been executed by any person in the United Kingdom, TABLE OF STAMP DUTIES. 441 affix thereto an adhesive stamp denoting the duty chargeable thereon, and at the same time cancel such adhesive stamp ; and the instrument with an adhesive stamp thereon so affixed and cancelled shaU be deemed duly stamped. S. 68. An executed instrument chargeable with duty as a charter- party, and not being duly stamped, may be stamped with an impressed stamp upon the following terms ; that is to say, (1) "Within seven days after the first execution tliereof, on payment of the duty and a penalty of four shillings and sixpence ; (2) After seven days, but within one month after the first execution thereof, on the payment of the duty and a penalty of ten pounds ; and shall not in any other case be stamped with an impressed stamp. Cheque, see Bill of Exchange. Circular Notb would seem to require or be exempt from same stamp as similar letter of credit, see Bill of Exclmnge. Cognovit requires no stamp (&), unless it amount to an agreement in- volving mutuality (c), as where it provides that a debt shaU be payable by instalments {d). Collateral Security, see Bond, Mmigage. Conditional Surrender, see Mortgage. Contract, see Agreement. Contract Note. — Any note, memorandum, or writing, commonly called a " contract note," or by whatever name the same may be designated, for or relating to the sale or purchase of any stock or marketable security of the value of £5 or upwards 1 S. 69. (1) The duty on a contract note may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the note is first executed. (2) Every person who make's or executes any contract note chargeable with duty, and not being duly stamped, shall forfeit the sum of twenty pounds. (3) No broker, agent, or other person, shall have any legal claim to any charge for brokerage, commission, or agency, with reference to the sale or purchase of any stock or marketable security of the value of five pounds or upwards mentioned or referred to in any contract note, unless such note is duly stamped. (h) Ames v. Hill, 2 B. & P. 150. (d) Eeardon c. Swabey, 4 Bast, 188. (c) Green o. Gray, 1 D. P. C. 150. 442 TABLE OP STAMP DUTIES. Conveyance or Transfer, whether on sale or otherwise, (1) Of any stock of the Governor and Company of the Bank of England 7 9 (2) Of any stock of the East India Company . . 1 10 (3) Of any debenture stock or funded debt of any company or corporation. For every £100, and also for any fractional part of £100 of the nominal amount trans- ferred 2 6 S. 78. Every instrument and every decree or order of any Court, or of any commissioners, whereby any property on any occasion, except a sale or mortgage, is transferred to or vested in any person, is chargeable with duty as a conveyance or transfer of property. Provided that a conveyance or transfer made for effectuating the appointment of a new trustee is not to be charged with any higher duty than ten shillings (/). Conveyance or Transpbr on sale. Of any property (except such stock or debenture stock or funded debt as aforesaid). Where the amount or value of the consideration for the sale does not exceed £5 Exceeds £5 and does not exceed £10 10 15 20 25 50 75 100 125 150 175 200 225 250 275 300 Eor every .£50, and also for any fractional part of £50 of such amount or value . . .050 S. 70. The term " conveyance on sale " includes every instrument and every decree or order of any Court or of any commissioners, whereby any property upon the sale thereof is legally or equit- ably transferred to or vested in. the purchaser, or any other person on his behalf or by his direction. if) Hadgett v. CorQmisBioners of Inland Revenue, L. R. 3 Ex. D. 46. 6 eio 1 15 1 6 20 2 25 2 6 50 5 75 7 6 100 10 125 12 6 150 15 175 . 17 6 200 1 225 .12 6 250 1 5 275 .17 6 300 1 10 TABLE OF STAMP DUTIES. 443 S. 71. (1) Where the consideration, or any part of the considera- tion, for a conveyance on sale consists of any stock or marketable security, such conveyance is to be charged with ad valorem duty in respect of the value of such stock or security. (2) Where the consideration, or any part of the considera- tion, for a conveyance on sale consists of any security not being a marketable security, such conveyance is to be charged with ad valorem duty in respect of the amount due on the day of the date thereof for principal and interest upon such security. S. 72. (1) Where the consideration, or any part of the considera- tion, for a conveyance on sale consists of money payable periodically for a definite period, so that the total amount to be paid can be previously ascertained, such conveyance is to be charged in respect of such considera- tion with ad ocdorem duty on such total amount. (2) ^\'here the consideration, or any part of the considera- tion, for a conveyance on sale consists of money payable periodically in perpetuity, or for any indefinite period not terminable with life, such conveyance is to be charged in respect of such consideration with ad valorem duty on the total amount which wiU or may, according to the terms of sale, be payable during the period of twenty years next after the day of the date of such instrument. (3) Where the consideration, or any part of the considera- tion, for a conveyance on sale consists of money payable periodically during any life or lives, such conveyance is to be charged in respect of such consideration with ad valorem duty on the amount which will or may, accord- ing to the terms of sale, be payable during the period of twelve years next after the day of the date of , such instrument. (4) Provided that no conveyance on sale chargeable with ad valorem duty in respect of any periodical payments, and containing also provision for securing such periodical payments, is to be charged with any duty whatsoever in respect of such provision, and no separate instrument made in any such case for securing such periodical pay- ments is to be charged with any higher duty than ten shillings. S. 73. Where any property is conveyed to any person in considera- tion whoUy or in part of any debt due to him, or subject either certainly or contingently to the payment or transfer of any money or stock, whether being or constituting a charge or 444 TABLE OP STAMP DUTIES. incumbrance upon the property or not, such debt, money, or stock is to be deemed the whole or part, as the case may be, of the consideration, in respect whereof the conveyance is charge- able with ad valorem duty. S. 74. (1) "Where any property has been contracted to be sold for one consideration for the whole, and is conveyed to the purchaser in separate parts or parcels by different instru- ments, the consideration is to be apportioned in such manner as the parties think lit, so that a distinct con- sideration for each part or parcel is set forth ia the conveyance relating thereto, and such conveyance is to be charged with ad valorem duty in respect of such distinct consideration. (2) Where property contracted to be purchased for one consideration for the whole by two or more persons jointly, or by any person for himself and others, or whoUy for others, is conveyed in parts or parcels by separate instruments to the persons by or for whom the same was purchased for distinct parts of the considera- tion, the conveyance of each separate part or parcel is to be charged with ad valorem duty in respect of the distinct part of the consideration therein specified. (3) Where a person having contracted for the purchase of any property, but not having obtained a conveyance thereof, contracts to seU the same to any other person, and the property is in consequence conveyed immediately to the sub-purchaser, the conveyance is to be charged with ad valorem duty in respect of the consideration for the sale by the origLual purchaser to the sub-purchaser. (4) Where a person having contracted for the purchase of any property, but not having obtained a conveyance, contracts to sell the whole, or any part or parts thereof, to any other person or persons, and the property is in consequence conveyed by the original seller to different persons in parts or parcels, the conveyance of each part or parcel is to be charged with ad valorem duty in respect only of the consideration moving from the sub- purchaser thereof, without regard to the amount or value of the original consideration. (5) Where a sub-purchaser takes an actual conveyance of the interest of the person immediately selling to him, which is chargeable with ad valm-em duty in respect of the consideration moving from him, and is duly stamped accordingly, any conveyance to be afterwards made to him of the same property by the original seller shaU be exempt from the said ad valorem duty, and chargeable TABLE OF STAMP DUTIES. 445 only with the duty to which it may be liable under any general description, but such last mentioned duty shall not exceed the ad valcyreni duty. S. 75. Where upon the sale of any annuity or other right not before in existence, such annuity or other right is not created by actual grant or conveyance, but is only secured by bond, warrant of attorney, covenant, contract, or otherwise, the bond or other instrument, or some one of such instruments, if there be more than one, is to be charged with the same duty as an actual grant or conveyance, and is for all the purposes of this Act to be deemed an instrument of conveyance on sale. Conveyance or Transfer by way of security of any property {except such stock or debenture stock or funded debt as aforesaid), or of any security, see Mortgage. CoNVEYANOB or TRANSFER of any kind not hereinbefore described 10 See s. 78, supra. Copyhold, see Mortgage. Coupon, see p. 427, n. (r), and p. 436. Counterpart, see Duplicate. Covenant, see Bond, Covenant, ^c, Conveyance on Sale, Mortgage. Coatenant. — Any separate deed of covenant {not being an instrument chargeable with ad valorem duty as a conveyance on sale or mortgage) made on the sale or mortgage of any property, and relating solely to the conveyance or enjoyment of, or the title to, the property sold or mortgaged, or to the production of the muni- ments of title relating thereto, or to all or any of the matters aforesaid. "Where the ad valorem duty in respect of the con-^ a duty equal sideration or mortgage money does not exceed *°*^^j^™°™^ 1 Os. . . . ■ ■ • • -J <"''™ "J"*?- In any other case . . . ■ . .0100 Debenture, see Mortgage. Declaration, see Affidavit. Declaration of any use or trust of or concerning any property by any writing, not being a deed or will, or an instrument chargeable with ad valorem duty as a settlement 10 Deed, see Bond, Covenant, dec, Mortgage. 446 TABLE OF STAMP DUTIES. Deed of any kind whatsoever, not described in this schedule 10 Defeazance, see Mortgage, s. 105. Demvery Obdeh 1 S. 87. The term " delivery order " means any document or writing, entitling or intended to entitle, any person therein named, or his assigns, or the holder thereof, to the delivery of any goods, wares, or merchandise of the value of forty shillings or upwards lying in any dock or port, or in any warehouse in which goods are stored or deposited on rent or hire, or upon any wharf, such document or writing being signed by or on behalf of the owner of such goods, wares, or merchandise upon the sale or transfer • of the property therein. H. 89. The duty upon a delivery order or warrant for goods may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the instrument is made, executed, or issued. S. 90. The duty upon a delivery order is, in the absence of any special stipulation, to be paid by the person to whom the order is given, and any person from whom a delivery order charge- able with duty is required may refuse to give it, unless or until the amount of the duty is paid to him. S. 91. (1) Every document or writing in the nature of a delivery order is to be deemed to have been given upon a sale of, or transfer of the property in, goods, wares, or mer- chandise of the value of forty shillings or upwards, unless the contrary is expressly stated therein; and every person who — (a) Untruly states, or knowingly or willingly allows it to be untruly stated, in any such document or writing, either that the transaction to which it relates is not a sale or transfer of property, or that the goods, wares, or merchandise to which it relates are not of the value of forty shillings ; (6) Makes, signs, or issues any delivery order charge- able with duty, but not being duly stamped ; (c) KJnowingly or wilfully, either by himself, or by his servant or any other person, procures, or requires, or authorises the delivery of, or delivers, any goods, wares, or merchandise, mentioned in any delivery order which is not duly stamped, or which contains to his knowledge any false state- ment with reference either to the nature of the transaction, or the value of the goods, wares, or merchandise, shall forfeit the sum of twenty pounds. TABLE OF STAMP DUTIES. 447 (2) But no delivery order is, by reason of the same being unstamped, to be deemed invalid in the bands of the person having the custody of, or delivering out, the goods, wares, or merchandise therein mentioned, unless such person is proved to have been party or privy to some fraud on the revenue in relation thereto. Deposit, see Mortgage. Discharge, see Mortgage. Disposition, see Conveyance on Sale, Mortgage. Dock "Wareant, see Warrant for Goods. Draft for money, see Bill of Exdhange. Duplicate or Counterpart of any instrument chargeable with any duty. TTTi 111 ( -^^^ same duty Where such duty does not amount to 5s. . \ o^ the original ( instrument. In any other case .5 S. 93. The duplicate or counterpart of an instrument chargeable with duty (except the counterpart of an instrument chargeable as a lease, such counterpart not being executed by or on behalf of any lessor or grantor) is not to be deemed duly stamped unless it is stamped as an original instrument, or unless it appears by some stamp impressed thereon that the full and proper duty has been paid upon the original instrument of which it is the duplicate or counterpart. EiK to a reversion, see Mortgage. Equitable Mortgage, see Moi-tgage. Exchequer Bill or Bond, see Receipt, Exemptions. Exemptions, see General Exemptions. Foreign Security, see Mortgage. Foreign Government Security, see Letter of Allotment, Mortgage. Further Charge or Further Security, see Mortgage. Future Advance, see Mortgage. General Exemptions, ante, pp. 431', 432. Guarantee requires a stamp when the principal agreement would require one (see Agreement), but not otherwise {g). (g) Warrington v. Furbor, 8 E. 242. 448 TABLE OF STAMP DUTIES. 1 Heritable Bond, see Mortgage. Insurance, see Poliay, Mortgage. Interest, see Bill of Exchange, Exemptions (9). Inventory, see Schedule. I U does not require a stamp (h); but an instrument which is really a promissory note or an agreement (though in form an I IJ) must be stamped as such note or agreement (*). Judgment Securities, see Warrant of Attorney, Cognovit. Letter op Allotment, or Letter op Eenunciation, or any other document having the effect of a letter of allotment : (1) Of any share of any company or proposed com- pany (2) In respect of any loan raised, or proposed to be raised, by any company or proposed company, or by any municipal body or corporation (3)"Tssued or delivered in the United Kingdom, of , any share of any foreign or colonial company or proposed company, or in respect of any loan raised or proposed to be raised by or on behalf of any foreign or colonial state, government, municipal body, corporation, or company And Scrip Certificate, Scrip, or other document : (1) Entitling any person to become the proprietor of any share of any company or proposed com- pany (2) Issued or delivered in the United Kingdom, and entitling any person to become the proprietor of any share of any foreign or colonial company or proposed company ..... (3) Denoting, or intended to denote, the right of any person as a subscriber in respect of any loan raised, or proposed to be raised, by any com- pany or proposed company, or by any muni- cipal body or corporation .... (4) Issued or delivered in the United Kingdom, and denoting, or intended to denote, the right of any person as a subscriber in respect of any loan raised or proposed to be raised by or on behalf of any foreign or colonial state, govern- ment, municipal body, corporation, or company (7i) Fisher v. Leslie, 1 Esp. 426 ; Chil- (i) Waitham v. Elaee, 1 Car. &, K. ders V. Boulnois, 1 D. & K. 8. 35 ; Broolcs v. Elkins, 2 M. & W. 74. 1 TABLE OF STAMP DUTIES. 449 S. 101. Eyery person who executes, grants, issues or delivers out any document chargeaWe with duty as a letter of allotment, letter of renunciation, or scrip certificate, or as scrip, before the same is duly stamped, shall forfeit the sum of twenty pounds. Letter op Credit, see Bill of Exchange. Letter or Power op Attorney, or Commission, Factory, Mandate, or other instrument in the nature thereof : (1 ) For the sole purpose of appointing or authorising any one person to vote as a proxy at any one meeting at which votes may he given by proxy 1 (2) By any petty officer, seaman, marine, or soldier serving as a marine, or by the executors or administrators of any such person, for receiving prize-money or wages . . . . .010 (3) For the receipt of the dividends or interest of any stock : Where made for the receipt of one payment only 10 Li any other case . . . . .050 (4) For the receipt of any sum of money, or any bill of exchange or promissory note for any sum of money not exceeding .£20, or any peri- odical payments not exceediQg the annual sum of £10 (not being hereinbefore charged) . .050 (5) For the sale, transfer, or acceptance of any of the Government or Parliamentary Stocks or Funds : Where the value of such stocks or funds does not exceed £20 5 In any other case 10 (6) Of any -kind whatsoever not hereinbefore de- scribed 10 Exemptions. (1) Letter or power of attorney for the receipt of dividends of any definite and certain share of the Government or Parliamentary Stocks or Funds producing a yearly dividend of less than £3. (2) Letter or power of attorney or proxy, filed in the Court of Probate in England or Ireland, or in any Ecclesiastical Court. (3) Letter or power of attorney for voting on any election of the directors of the East India Company. G G 450 TABLE OF STAMP DUTIES. S. 102 relates to letters or powers of attorney for voting at elections. S. 103. A letter or power of attorney for the sale, transfer, or acceptance of any of the Grovernment or Parliamentary Stocks or Funds, duly stamped for that purpose, is not to he charged with any further duty hy reason of cbntaining an authority for the receipt of the dividends on the same stocks or funds. S. 104. A writing under hand only containing an order, request, or direction from the owner or proprietor of any stock to any company or to any officer of any company, or to any banker, to pay the dividends or interest arising from such stock to any person therein named, is not chargeable with duty as a letter or power of attorney. Life Policy, see Policy of Insurance. Lloyd's Bond, see Mortgage. Marketable Security, see Mortgage. Memorial to be registered pursuant to any Act of Parliament, made or to be made, for the public registering of deeds and conveyances in England or Ireland : Where the instrument registered is chargeable with (as ° th"\egi8^- any duty not amounting to 2s. 6d. . .I^ent ™'™' In any other case . . . . . .026 Mortgage, Bond, Debenture, Covenant, Warrant of Attorney to confess and enter up judgment, and Foreign Security of any kind (except mortgage of any stock or marketable security): (1) Being the only or principal or primary security for — The payment or repayment of money not ex- ceeding £25 . Exceeding £25, and- not exceeding £50 100 150 200 250 300 , Q 8 £50 . 1 3 100 . 2 6 150 . 3 9 200 . 5 250 . 6 3 300 . 7 6 For every £100, and also for any fractional part of £100, of such amount . . .026 Mortgage of any stock or marketable security : For every £5000, and also for any fractional part of £5000 of the amount secured (/c) 10 (h) 34 Viet. e. 4, «. 5. TA»LE OF STAMP DUTIES. 4ol (2) Being a collateral, or auxiliary, or additional, or substituted security, or by way of further assurance for the above-mentioned purpose, where the principal or primary security is duly stamped : For every £100, and also for any fractional part of £100 of the amount secured .006 (3) Transfer, Assignment, Disposition, or Assigna- tion of any mortgage, bond, debenture, cove- nant, or foreign security, or of any money or stock secured by any such instrument, or by any warrant of attorney to enter up judgment, or by any judgment: For every £100, and also for any fractional part of £100 of the amount transferred, assigned, or disposed . . . .006 I Tlie same duty And also where any further money is added \ as a principal to the money already secured . . y suoV further ( money. (4) Eeconveyance, Eelease, Discharge, Surrender, Ee-surrender, Warrant to Vacate, or Eenuncia- tion of any security as aforesaid, or of the benefit thereof, or of the money thereby secured (except release or discharge of a mort- gage of stock or marketable security which is not chargeable with any ad valorem duty) (Z) : For every £100, and also for any fractional part of £100, of the total amount or value of the money at any time secured 6 105. The term " mortgage " means a security by way of mortgage for the payment of any deiinite and certain sum of money advanced or lent at the time, or previously due and owing, or forborne to be paid, being payable, or 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 ; And includes — Conditional surrender by way of mortgage, further charge, wadset, and heritable bond, disposition, assignation, or tack in security, and eik to a reversion of or affecting any lands, estate, or property, real or per- sonal, heritable or moveable, whatsoever : Also any deed containing an obligation to infeft any person in an annual rent, or in lands or other herit- {l) 34 Vict. c. 4, 8. 5. GG2 452 TABLE OF STAMP DUTIES. able subjects in Scotland, under a clause of reversion, but without any personal bond or obligation therein contained for payment of the money or stock in- tended to be secured : Also any conveyance of any lands, estate, or property whatsoever in trust to be sold or otherwise converted rato money, intended only as a security, and redeem- able before the sale or other disposal thereof, either by express stipulation or otherwise, except where such conveyance is made for the benefit of creditors generally, or for the benefit of creditors specified who accept the provision made for payment of their debts in fuU satisfaction thereof, or who exceed five in number : Also any defeasance, letter of reversion, back bond, de- claration, or other deed or writing for defeating or making redeemable or explaining or qualifying any conveyance, disposition, assignation, or tack of any lands, estate, or property whatsoever, apparently absolute but intended only as a security : Also any agreement, contract, or bond accompanied with a deposit of title deeds for making a mortgage, wad- set, or any such other security 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 : And also any deed whereby a real burden is declared or created on lands or heritable subjects in Scotland. S. 106. A security for the transfer or re-transfer of any stock is to be charged with the same duty as a similar security for a sum of money equal in amount to the value of such stock, and a transfer, assignment, disposition, or assignation of any such security, and a re-conveyance, release,, discharge, surrender, re-surrender, w:arrant to vacate, or renunciation of any such security, shall be charged with the same duty as an instrument of the same description relating to a sum of money equal in amount to the value of such stock. S. 107. (1) A security for the payment or repayment of money to be lent, advanced, or paid, or which may become due upon an account current, either with or without money previously due, is to be charged, where the total amount secured or to be ultimately recoverable is in any way limited, with the same duty as a security for the amount so limited. , (2) Where such total amount is unlimited, the security is to be available for such an amount only as the ad valorem duty impressed thereon extends to cover. TABLE OF STAMP DUTIES. 453 (3) Provided that no money to be advanced for tlie in- surance of any property comprised in any such security against damage hy fire, or for keeping up any policy of life insurance comprised in such security, or for effecting in lieu thereof any new policy, or for the renewal of any grant or lease of any property comprised in such security upon the dropping of any life whereon such property is held, shall be reckoned as forming part of the amount in respect whereof the security is chargeable with ad valorem duty. S. 108. A security for the payment of any rent-charge, annuity, or periodical payments, by way of repayment, or in satisfaction or discharge of any loan, advance, or payment intended to be so repaid, satisfied, or discharged, is to be charged with the same duty as a similar security for the payment of the sum of money so lent, advanced, or paid. S. 109. K"o transfer of a duly stamped security, and no security by way of further charge for money or stock, added to money or stock previously secured by a duly stamped instrument, is to be charged with any duty by reason of containing any further or additional security for the money or stock transferred or previously secured, or the interest or dividends thereof, or any new covenant, proviso, power, stipulation, or agreement in relation thereto, or any further assurance of the property com- prised in the transferred or previous security. S. 110. (1) Where any copyhold or customary lands or heredita- ments are mortgaged alone by means of a conditional surrender or grant, the ad valorem duty is to be charged on the surrender or grant, if made out of court, or the memorandum thereof, and on the copy of court roll of the surrender or grant, if made in court. (2) Where any copyhold or customary lands or heredita- ments are mortgaged, together with other property, for securing the same money or the same stock, the ad valorem duty is to be charged on the instrument relating to the other property, and the suraender or grant, or the memorandum thereof, or the copy of court roll of the surrender or grant, as the case may be, is to be charged with duty as if the surrender or grant were not made upon a mortgage, but such last mentioned duty shall not exceed the said ad valorem duty. S. 111. An instrument chargeable with ad valorem duty as a mortgage is not to be charged with any other duty by reason of the equity of redemption in the mortgaged property being thereby conveyed or limited in any other manner than to, or in trust for, or according to the direction of, a purchaser. 454 TABLE OF STAMP DUTIES. S. 112. The exemption from stamp duty conferred by the Act of the sixth and seventh years of King William the Fourth, chapter thirty-two, for the regulation of benefit buUding societies, shall not extend to any mortgage to be made after the passing of this Act, except a mortgage by a member of a building society for securing the repayment to the society of money not exceeding five hundred pounds. 34 ViOT. 0. 4. S. 2. The term "foreign security" means and includes every security for money by or on behalf of any foreign or colonial state, government, municipal body, corporation, or company, bearing date or signed after the third day of June, one thousand eight hundred and sixty-two (except an instrument chargeable with duty as a bill of exchange or promissory note), — (1) Which is made or issued in the United Kingdom ; or (2) Which, the interest thereon being payable in the tJnited Kingdom, is assigned, transferred, or in any manner negotiated in the United Kingdom. S. 3. Every person who in the United Kingdom makes, issues, assigns, transfers, or negotiates any foreign security, not being duly stamped, shaU forfeit the sum of twenty pounds (m). 33 & 34 Vict. c. 97. S. 115. The commissioners may at any time, without reference to the date thereof, allow any foreign seciurity to be stamped without the payment of any penalty, upon beiag satisfied in any manner that they may think proper, that it was not made or issued, and has not been transferred, assigned, or negotiated within the United Kingdom, and that no interest has been paid thereon within the United Kingdom. Notarial Act, see Protest. Ordee for the payment of money, see BUI of Exchange. Pawn, see ante, pp. 425, 431. Pledge, see ante, pp. 425, 431. (m) Greenfell v. Couunissioners of Inland Revenue, L. B. 1 Ek. D. 242. TABLE OF S'J'AMP DUTIES. 455 Policy op Insurance — (1) Upon any life or lives, or upon any event or con- tingency relating to or depending upon any life or lives {except for the payment of monei/ upon the death of any person mily from accident or violence, m- otherivise than from a natural cause) : Where the sum iusured does not exceed £10 .001 Exceeds £10, but does not exceed £25 . .003 Exceeds £25, but does not exceed £500 : For every full sum of £50, and also for any fractional part of £50, of the amount insured 6 Exceeds £500, but does not exceed £1000: For every full sum of £100, and also for any fractional part of £1 00, of the amount insured 10 Exceeds £1000 : For every full sum of £1000, and also for any fractional part of £1000 of the amount in- sured 10 (2) For any payment agreed to be made upon the death of any person, only from accident or violence, or otherwise than from a natural cause, or as com- pensation for personal injury, or by way of indemnity against loss or damage of or to any property . .001 S. 117. (1) The term "insurance" includes assurance, and the term " policy " includes every writing whereby any contract of insurance is made, or agreed to be made, or is evidenced ; and except as hereinafter mentioned, this Act does not apply to policies of sea insurance. (2) A policy of sea insurance made or executed out of, but being in any manner enforceable within, the United Kingdom, is to be charged with duty under the Act of the thirtieth year of her Majesty's reign, chapter twenty- three, and may be stamped at any time within two months after it has been first received in the United Kingdom on payment of the duty only. S. 118. Every person who — (1) Eeceives, or takes credit for, any premium or con- sideration for any contract of insurance, and does not within one month after receiving or taking credit for such premium or consideration make out and execute a duly stamped policy of such insurance ; (2) Malces, executes, or delivers out, or pays or allows in account, or agrees to pay or allow in account, any money upon or in respect of any policy which is not duly stamped ; shall forfeit the sum of twenty pounds. 456 TABLE OF STAMP DUTIES. S. 119. (1) The duties imposed by this Act upon policies of insur- ance may be denoted by adhesive stamps, or partly by adhesive and partly by impressed stamps. (2) When the whole or any part of the duty upon a policy of insurance is denoted by an adhesive stamp, such adhesive stamp is to be cancelled by the person by whom the policy is first executed. (3) In default of such cancellation, the person making the insurance shall forfeit the sum of twenty pounds. Post Obit, see Bond. Post Office Oedee, see ante, pp. 56, 57. Power op Attoenby, see Letter of Attorney. Peomissoey Note, see Bank Note, Bill of Exchange. Protest of any biU of exchange or promissory note : I The same dutj Where the dutv on the bill or note does not exceed Is. •< as the mu or " f note. In any other case .010 S. 116. The duty upon a notarial act, and upon the protest by a notary public of a bill of exchange or promissory note, may be denoted by an adhesive stamp, which is to be cancelled by the notary. Receipt given for, or upon the payment of, money amount- ing to £2 or upwards . . . . . .001 Exemptions. (1) Receipt given for money deposited in any bank, or with any banker, to be accounted for and expressed to be received of the person to whom the same is to be accounted for. (2) Acknowledgment by anj"- banker of the receipt of any bill of exchange or promissory note for the purpose of being presented for acceptance or payment. (3) Receipt given for or npon the payment of any parliamentary taxes or duties, or of money to or for the use of her Majesty. (4) Receipt given by the Accountant-General of the Navy for any money received by him for the service of the Navy. (5) Receipt given by any agent for money imprested to him on account of the pay of the Army. (6) Receipt given by any officer, seaman, marine, or soldier, or his representatives, for or on account of any wages, pay, or pension due from the Admiralty or Army Pay Office. TABLE OP STAMP DUTIES. 457 (7) Receipt given for the consideration money for the purchase of any share in any of the Govern- ment or Parliamentary Stocks or Funds, or in stock of the East India Company, or in the stocks and funds of the Secretary of State in Council of India, or of the Governor and Com- pany of the Bank of England or of the Bank of Ireland, or for any dividend paid on any share of the said stocks or funds respectively. (8) Receipt given for any principal money or inte- rest due on an Exchequer bill. (9) Receipt written upon a biU of exchange or pro- missory note duly stamped. (10) Receipt given upon any bill or note of the Governor and Company of the Bank of England or the Bank of Ireland. (11) Receipt indorsed or otherwise written upon or contained in any instrument liable to stamp duty, and duly stamped, acknowledging the receipt of the consideration money therein ex- pressed, or the receipt of any principal money, interest, or annuity thereby seecured or therein mentioned. (12) Receipt given for drawback or boimty upon the exportation of any goods or merchandise from the United Kingdom. (13) Receipt given for the return of any duties of customs upon certificates of over entry. (14) Receipt indorsed upon any bill drawn by the Lords Commissioners of the Admiralty, or by any person under their authority, or under the authority of any Act of Parliament upon and payable by the Accountant-G«neral of the JSTavy. S. 120. The term "receipt" means and includes any note, memo- randum, or writing whatsoever whereby any money amounting to two pounds or upwards, or any bill of exchange or promis- sory note for money amounting to two pounds or upwards, is acknowledged or expressed to have been received, or deposited, or paid, or whereby any debt or demand, or any part of a debt or demand, of the amount of two pounds or upwards, is acknow- ledged to have been settled, satisfied, or discharged, or which signifies or imports any such acknowledgment, and whether the same is or is not signed with the name of any person. S. 121. The duty upon a receipt may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the receipt is given before he delivers it out of his hands. 458 TABLE OF STAMP DUTIES. S. 122. A receipt given without being stamped may be stamped witli an impressed stamp upon the terms following : that is to say, (1) Within fourteea days after it has been given, on pay- ment of the duty and a penalty of five pounds. (2) After fourteen, days, but within one month, after it has been given, on payment of the duty and a penalty of ten pounds, and shall not in any other case be stamped with an impressed stamp. S. 123. If any person — (1) Gives any receipt liable to duty and not duly stamped ; (2) In any case where a receipt would be liable to duty refuses to give a receipt duly stamped ; (3) Upon a payment to the amount of two pounds or up- wards gives a receipt for a sum not amounting to two pounds, or separates or divides the amount paid with intent to evade the duty; he shall forfeit the sum of ten pounds. Ebconveyancb, Release, or Ebnunciation of any security, see Mortgage. Release or Renunciation of any property, or of any right or interest in any property. Upon a sale, see Conveyance on Sale. By way of security, see Mortgage. In any other case . . . . . . .0100 Re-surrender, see Mortgage. Revocation of any use or trust of any property by deed, or by any writing, not being a will . . . .0100 Schedule, Inventory, or document of any kind what- soever, referred to in or by, and intended to be used or given in evidence as part of, or as material to, any other instrument charged with any duty, but which is separate and distinct from, and not indorsed on or annexed to, such other instrument : Where such other instrument is chargeable with any '\'^^ ^™^ "^li^'y 1. , T^/^ *'-?^''r-^''®"' ^■' ** chambers, 61 (Z) Mercantile River Plate v. Isaac (1876) L. T. 283. Ibid., 303, ccciv. (/i) Pollock and Anr. v. Campbell (m) Ibid., 230, ccxxxii. ACTIONS AND OTHER REMEDIES ON SECURITIES. 471 same time a strong opinion has beeni intimated that in an action nnder the Bills Act, a party cannot be subsequently joined as plaintilF by virtue of the Judicature Act, where he could not originally have been plaintiff under the Act, and this would seem to be the true interpretation of the intention of the Legislature, for otherwise the Bills Act might be extended to almost any claim, and its peculiar procedure up to defendant's appearance be indefinitely invaded (n). Further, a writ under the Bills Act may issue out of a district registry, and though neither party resides or carries on business within the district, the notice may require the defendant to apply for leave to appear, and to appear in the district registry, without suggesting that he might obtain leave to appear in London, but a defendant may under 0. XXXV. obtain an order for the subsequent pro- ceedings to be had in London (o). It will be observed that the procedure under the Bills of Exchange Act, and on a specially indorsed writ of summons, are closely analogous ; in fact the procedure in the latter case was fashioned on the model furnished by the procedure in the former case, hence their mutual relationships. At the same time there are some very important differences which require to be care- fully noted : First, a specially indorsed writ may issue for any liquidated demand in money whatsoever, whilst a writ under the BiUs Act can only issue to recover on a bill or note, and that not on every bill or note, but merely on such as are not more than six months due and payable. However, a cheque on a banker (p) and a note payable on demand are within the Act, and in the latter instance the six months run from the date of the instrument (q). Secondly, the defendant appears as of right to a specially indorsed writ, whereas he must obtain leave to appear to a writ under the Bills Act, so that summary final judgment follows in the former case, not unless an application (n) Smith v. Richardson, L. R. 4 Whistler i>. Hancock, L. E. 3 Q. B. D. G. P. D. 112. 83. (o) Ogur V. Bradnum, L. R. 1 C. P. (9) Maltby v. Murrells, 5 H. & N. D. 334 813. (i>) Byre v. WaUer, 5 H. & N. 460 ; 472 MISCELLANEOUS. by the plaintiff is granted — in the latter case as of course, unless an application by the defendant is granted. Thirdly, a specially indorsed writ remains in force for twelve months, but a writ under the Bills Act remains in force for only six months from its date. Lastly, when an action proceeds on a specially indorsed writ, the plaintiff may deliver as his statement of claim a notice that his claim is that which appears by the indorsement on the writ, whilst a regular statement of claim must be delivered when the action proceeds on a writ issued under the Bills Act. Section III. Realisation and Redem/ption of Mortgages of Real PropeHy. The mode in which a mortgagee of real property obtains the ultimate benefit of his security is by foreclosure or sale ; by the former, which is a purely judicial proceeding, the mortgagor's equity of redemption is extinguished, and the mortgagee becomes absolute owner ; by the latter, which may be either a judicial or an extra-judicial proceeding, the purchaser becomes absolute owner, and the purchase-money is applied in discharge of the mortgagee's and other incumbrances, any remaining balance accruing to the mortgagor (r). In England mortgages of lands, whether legal or equitable (s), are, when judicially realised, regularly enforced by decree for foreclosure. We shall accord- ingly begin by describing the proceedings to be taken in prose- cution of that remedy, coupling with that description an account of the correlative proceedings to be taken by a mortgagor for redemption or restoration of the property mortgaged. A decree for foreclosure or redemption is obtained in an action instituted for that purpose in the Chancery Division (t). (r) Ante, p. 111. ing Co. v. Artley, L. R. 11 Ch. D. 205. (s) 4»te,p.228,ii(»);Jamesz'.James, («) S. 34, 36 & 37 Viot. c. 66: Ex L. R. 16 Eq. 153 ; IL Seton Decrees, parte Pannell ; In re England L R 6 4thed., 1125, cUej.; York Union Bank- Ch. D. 335. ACTI0N8 AND OTHER REMEDIES ON SECURITIES. 473 Such action is governed by the ordinary practice (u). We need, therefore, only touch on such points as have a peculiar bearing on the suits we are now considering. The object of foreclosure is to remove the indulgent interference of a Court of Equity in suspending the effect of the legal forfeiture incurred by a mortgagor's default in due payment of the mortgage debt (x) ; hence, it is held that an action for foreclosure is not an action for recovery of land (y) within the meaning of Order XVII., r. 2, in the schedule to the Judicature Act, 1875, and that, con- sequently, no leave for joinder of various other claims in an action for foreclosure is necessary (z). On the other hand, it would seem that an action for redemption, at least in the case of a legal mortgage, is an action for recovery of land within the above rule (a), and under the Statutes of Limitation actions for either redemption or foreclosure are actions for recovery of land (b). A foreclosure action being brought, the mortgagor may either admit or dispute the claim made against him. If he admit both the validity of the mortgage and the amount of the debt claimed, judgment may be entered in pursuance of an order made on application by motion as if the action had been regularly brought to trial (c). If he dispute either the validity of the mortgage or the amount of the debt claimed, the action must be brought to trial in the ordinary way. The common decree or judgment for foreclosure first declares the validity of the security, if that be disputed ; then, if the amount of the plaintiff's claim be not admitted, directs an account to be taken of what is due to the mortgagee for principal advanced, interest thereon, and taxed costs, and, also, if the mortgagee have been . in possession, of what rents and profits he has received, and («) For form of pleadings, see 38 & 4 Q. B. D. 127 ; Cook v. Enmarch, L. R. 39 Vict. c. 77, Sch. ; App. A, Pt. II., 2 Ch. D. Ill ; Whetstone v. Dewis, ss. 1, 4, 5 ; App. 0, No. 14. L.. B. 1 Ch. D. 99 ; In re Taafife's {x) Ante, pp. 110, 130. Estate, 1 L. R. Ir. 387 ; James v. Rum- iy) Paget v. Ede, L. R. 18 Eq. 118. say, 11 Oh. D. 398. (z) TaweU v. Slate Co., L. R. 3 Ch. (6) Ante, pp. 130—141 ; Sug. R. P. D. 629; Crowle u. Bussell, L. R. 4 0. Stats., 2nd ed., 24—32. P. D. 186. {c) 38 & 39 Vict. c. 77, 0. xl. r. 11 ; (o) See Phillipps v. Phillipps, L. R. Mellorti.Sidebottom.L.R. 5 Ch. D.342. 47-i MISCELLANEOUS. what moneys ho has expended in necessary repairs (d) ; that, on payment by the mortgagor of the amount certified to be due by the chief clerk (e) within six calendar months from date of the certificate, the mortgagee reconvey the estate free from in- cumbrances, and deliver up on oath all deeds and documents relating thereto in his possession, power, or control; that, on default in such payment, the mortgagor be' absolutely debarred and foreclosed of his equity of redemption (/). Where the mortgagee asks in his pleadings for a personal decree for pay- ment, as well as for foreclosure, such personal decree may now be granted (cj). The place and time for payment appointed by the chief clerk's certificate are the vestry of Rolls chapel, lloUs Garden, Chancery Lane, between the hours of noon and one o'clock on a given day, at which place and time accordingly the mortgagor, or some one on his behalf, should tender the amount to the mortgagee or his duly constituted agent. In default of due payment or tender, final order for foreclosure (h) may be obtained by motion of course, on which it is necessary to produce the decree or judgment, the chief clerk's certificate, and an affidavit by the mortgagee, or by the mortgagee and his agent, if he acted by agent, of his or his agent's (i) due attendance to receive, and of the mortgagor's default in attending to make payment, of what is due (k). Should the mortgagee or his agent have failed to attend at the hour appointed, and so to receive pajonent, a new time therefor may be fixed by order made on motion or summons applied for or taken out on the part of the mortgagee (l) ; and a similar order to continue the account should be obtained where the mortgagee has received (d) Tipton Green Colliery Co. r. 51 2 ; Hinds r. Blacker, 1 L. E. Ir. 23-3 ; Tipton Moat Colliery Co., L. K. 7 Ch. Ir. R. 11 Eq. 322. D. 192 ; Saunders v. Dnnman, L. B,. 7 (A) In Hungerford i). Coghlan, 1 L. K. Ch. D. 825 ; emte, pp. 110, 123—125. Ir. 303, final order for payment or sale (e) For forms of certificate, see Dan. on defendant's default in pleading ; Oh. Forms and Preceds., 3rd ed., pp. Massy v. Donovan, 3 L E. Ir 85 568, 569, 571—573. (i) Cox v. Watson, L. R. 7 Ch. D. . (/) Seton's Decrees, 4th ed., 1035, 196. 1036, 1066 ; Pemberton Judgments and . {h) Dan. Chancery Forms and Pre- Orders, 2nd ed., 436—438. ceds., 3rd ed., pp. 575—577 for) Dymond v. Croft, L. R. 3 Ch. D. {I) Hid., p. 574. ACTIONS AND OTHER REMEDIES ON SECURITIES. 475 rents between the certificate and the time for payment {vi). A defendant may likewise for good reason, by motion or summons, obtain an enlargement of the time for pajmient by six months or other period (n). The decree in a redemption suit, after directing payment as in a foreclosure suit (o), orders that, on the mortgagor's default in such payment, the action be dismissed with costs ; but that if nothing shall be found to be due to the mortgagee, that he reconvey, within twenty-one days from the chief clerk's certificate, and pay to the mortgagor whatever may be certified to be due to him (p). A dismissal of the action by the mortgagor's default is equivalent to a foreclosure where the mortgage is legal, but not where the mortgage is equitable (q). A final order for redemption or dismissal obtained as above described is necessary to perfect the decree (r). The foregoing are the proceedings as between the original mortgagor and mortgagee where there has been but one mortgage. There may, however, be a transmission of the mortgagor or mortgagee's interest, or there may be several mortgages of the same or of different subjects. The question then arises, who, under such circumstances, are the proper parties, and what their mutual rights in actions for the redemption or foreclosure of the property mortgaged. We have elsewhere stated the relation a person must occupy towards the property to possess the right of redemption (s). Whoever possesses such right, and, in general, all persons interested in the security or equity of redemption, must be before the Court, or sufficiently repre- sented (t). Thus, where a person is only interested in part of the mortgage money or equity of redemption, foreclosure of a corresponding part of the estate cannot be obtained by or against him without joinder in the action of the other parties interested (u) . (m) Ibid. (s) Ante, jjp. 92, 93, 112. (n) Ibid., p. 573. («) II. Fisher Mortgs., 3rd ed., 883— (o) AnU, pp. 473, 474. 919. (jp) II. Seton, 4tli ed., pp. 1040, 1041. (m) Palmer v. Earl of Carlisle, 1 Sm. (j) Ante, pp. 228, 229. & G. 423 ; Caddick v. Cooke, 32 Beav. {r) Dan. Ch. Forms and Preceds., 70. 3rd ed., p. 575. 476 MISCELLANEOUS. A. cestui que trust, however, is now in all cases sufficiently- represented by his trustee (v), and an action for foreclosure may be brought by one trustee and mortgagee against the mortgagor and his co-trustees and co-mortgagees (a;). Of successive mort- gagees only such as are affected by the action need be parties ; thus, if a third seek to foreclose a first mortgagee, the second mortgagee must be a party ; otherwise, if a third seek to fore- close a second mortgagee, the first mortgagee is not a necessary party, because, whatever the result of the suit, his priority and security are not disturbed (y) ; nor is a mortgagor a necessary party to a suit for redemption or foreclosure by a sub-mortgagee against the original mortgagee ; but in a similar' suit against the mortgagor the original mortgagee would be a necessary party (z). A person made a party to a redemption or foreclosure suit may disclaim all interest therein, and he will be allowed his costs when such disclaimer is made before the hearing, but not where he appears and only disclaims at the hearing (a) ; so a trustee in bankruptcy may disclaim where the equity of redemption is valueless (6). The decree in a foreclosure suit where there are several con- secutive mortgages, is so moulded as to secure payment to the several mortgagees according to their respective priorities, arid at the same time to allow the mortgagor a fair opportunity of redeeming, by making the ultimate foreclosure against him (c). Thus, if first mortgagee seek to foreclose and there be three mortgages, the decree would be that the second pay what shall be found due to the first mortgagee within six calendar months from date of the chief clerk's certificate, or on default be fore- closed ; that, on such default, the third pay what shall then be found due to the first mortgagee within three calendar months («) 38 & 39 Viot. c. 77; O. xvi., r. 7. 6 Eq. 20 ; Maxwell v. Wliitwick, L. E. (a;) Lute v. S. Kensington Hotel Co., 3 Eq. 290. L. K. 11 Ch. T>. 121. (J) Melbourne Banking Co . v. {y) Rosa v. Page, 2 Sim. 472. Brougham, L. E. 4 App. Caa. 156, 165 ; (2) Lysaght v. Westmacott, 33 Beav. Ex pa/rte Fletcher ; In re Hart, L. E. 417 ; Hobart v. Abbot, 2 P. Wms. 343. 10 Ch. D. 610 ; Ex pa/rte Hirst ; In re (a) Ford v. Earl of Chesterfield, 16 Wheerly, L. E. U Ch. D. 278. Beav. 516 ; Day v. Gudgeon, L. R. 2 (c) Whitbread v. Lyall, 8 D . M. & Ch. D. 209 ; Eoberts v. Hughes, L. E. G. 383. ACTIONS AND OTHER KEMEDIES ON SECUBITIES. 477 from date of the chief clerk's certificate, or on default be fore- closed; that, on such default, the mortgagor pay what shall then be found due to the first mortgagee within three calendar months from date of the chief clerk's certificate, or on default be foreclosed ; that, if the second duly pay what shall be found due to the first mortgagee, the third pay what shall then be found due both on the second and on the first mortgages, within three calendar months from date of the chief clerk's certificate, or on default be foreclosed ; that, on such default, the mortgagor pay what shall then be found due both on the second and on the first mortgages within three calendar months from date of the chief clerk's certificate, or on default be foreclosed ; that, if the third duly pay what shall be found due to the second mortgagee, the mortgagor pay what shall then be found due (d) on the first, second, and third mortgages within three calendar months from date of the chief clerk's certificate, or be foreclosed. Where there has been tacking (e) or consolida- tion (/), those rights will be successively transmitted through subsequent incumbrancers, so as to give corresponding rights to redemption or foreclosure (g). In a redemption or foreclosure suit, the mortgagee is in general entitled to his costs (h), and the mortgagor must bear the costs of reconveyance whatever mesne assignments may have taken place (i) ; but a mortgagee may be deprived of his costs for (a) vexatious, oppressive, or fraudulent acts, (b) improper resistance of the right to redeem, (c) overpajnnent before suit with denial thereof, (d) refusal to accept tender of full amount due, (e) loss of mortgage or title deeds (k). We may now allude to the realisation of a mortgage by sale ; this, as we have said, may be either judicial or extra-judicial. (d) Pemberton Judgments and Or- 245 ; II. Seton Decrees, 4th ed., 1155 — ders, 2nd ed., 438—440; II. Seton 1158. Decrees, 4th ed., 1081, 1082. {/«) II. Fisher's Mortgs., 3rd ed., 999, (e) Ante, pp. 112—114. 1000. (/) Ante, pp. 114, 115. (i) King v. Smith, 6 Hare, 475 ; 1 D. ig) CracknaU v. Janson, L. R 11 Oh. G. M. & G. 436. D. 1 ; Bevor v. Luck, L. E. 4 Eq. 537 ; (*) II. Seton Decrees, 4th ed., 1060, Thornicroft v. Crockett, 2 H. L. C. 239, 1061. 478 MISCELLANEOUS. Judicial sales (actions for which, are brought in, and prosecuted according to the ordinary procedure of the Chancery Division) (I) were fomierly decreed only in certain special cases, of which the following are an enumeration : (1) where the estate was deficient to pay the incumbrance (m) ; (2) where the mortgagor died, and there was deficiency of personal assets (n) ; or (3) descent of the estate upon an infant (o) ; or (4) bill brought by the mortgagee against the executor or administrator and the heir, alleging his security to be scanty, and praying a sale and pay- ment of any deficiency out of the general estate of the mortgagor (p) ; (5) where the mortgagor became bankrupt, and the mortgagee prayed a sale (q); (6) where the mortgage was of a dry reversion (r) ; or (7) of an advowson (s) ; (8) where as in Ireland (t) the local law substitutes sale for foreclosure. In the year 1852, a general jurisdiction to decree a sale was conferred on the Court of Chancery by the enactment following : — It shall be lawful for the Court in any suit for the foreclosure of the equity of redemption in any mortgaged property, upon the request of the mortgagee or of any subsequent incumbrancer, or of the mortgagor, or any person claiming under them respec- tively, to direct a sale of such property, instead of a foreclosure of such equity of redemption, on such terms as the Court may think fit to direct, and if the Court shall so think fit, without previously determining the priorities of incumbrances, or giving the usual or any time to redeem ; provided that if such request shall be made by any such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the Court shall not direct any such sale without the consent of the mortgagee or .the persons claiming under him, unless the party making such request shall deposit in Court a reasonable sum of (I) S. 34, 36 & 37 Vict. u. 66. (q) Ibid. (to) Dashwood I). BithazcyMoael, 196. (?•) How v. Vigures, 1 Ch. 32. («) Daniel ■„. Skipwith, 2 Bro. Ch. {s) Mackensie v. Kobiuson, 3 Atk. 155. . 559. (o) Booth V. Eich, 1 Vem. 295 ; («) Stileman v. Ashdown, 2 Atk. 477 Foster v. Parker, L. K. 8 Ch. D. 147. 608 ; Story Eq. Jurisprud e 1026 ' (p) King V. Smith, 2 Hare, 239. ^ ' ACTIONS AND O'lHER REMEDIES ON SECURITIES. 479 money, to be fixed by the Court for the pui-pose of securing the performance of such terms as the Court may think fit to impose on the party making such request (u). Under this provision a sale may be decreed though the mortgage deed contain a power of sale («), or though the mortgagor (y) or a third mortgagee (0) insist on foreclosure, but the Court will exercise a discretion by decreeing foreclosure where a sale would be manifestly injurious to the mortgagor and other parties interested (a). If a sale be directed at the request of the mortgagor without the consent of the mortgagee, it is absolutely necessary that the prescribed deposit should be made, the amount of which will be determined by the probable expense of an unsuccessfiil attempt to sell (5). An immediate sale may be ordered (c), but usually the decree is framed in the same manner as a foreclosure decree, ordering a sale on default of the amount found due by the chief clerk, being paid within six calendar months from date of his certificate (d). The sale may be either by public auction, public tender, or private contract; the proceedings are the same as in other sales directed by the Court (e). Extra-judicial sales are made either under express powers or under the statutory power conferred by the 23 & 24 Vict. c. 145 (/); the formalities prescribed in either case should be rigidly observed; thus, due notice of the sale should be given to the mortgagor or person entitled to the equity of redemption, which, when no particular length of notice is specified, should be such as to give such person a reasonable opportunity of saving the estate if he be so disposed (g). A mortgagee will be restrained from exercising a power of sale in a fraudulent or («) S. 48, 15 & 16 Vict. c. 86. 150 ; London and County Banking Co. (a) Button v. Sealey, 6 W. R. 350. ■«. Dover, L. R. 11 Ch. D. 204. (y) Newman v. Selfe, 33 Beav. 522. (d) Parkes v. Housefield, 2 My. & K. h) Wiokham <;. Nicholson, 19 Beav. 419 ; Pemberton, 450, 451. 38. (e) S. 56, 15 & 16 Vict. c. 86 ; Consol. (a) Hurst v. Hurst, 16 Beav. 375; Ord.r. 13; Regulations, 8th Aug. 1857 Cater V. Reeves, 16 Jur. 1004. rr. 13—15. (6) Bellamy v. Cockle, 18 Jur. 465. (/) Ante, pp. 120, 121. (c) Smith V. Robinson, 1 Sm. & Giff. (fir) Metters v. Brown, 33 L. J.Ch. 97 480 MISCELLANEOUS. inequitable way (h), and until an actual contract of sale is entered into he is bound to accept payment of what is due by the mortgagor, and thereupon refrain from selling (i). The " usual account against the mortgagee in possession," who has sold the subject mortgaged, includes proceeds actually recieived or which without his wilful default might have been so received, even though such default is not charged in the pleadings, nor proved at the trial, but the mortgagor is not entitled to question the propriety of the sale, or the adequacy of the price (k), nor can a sale purporting to be made in pursuance of a power which was not to be exercised unless default were made in payment of the principal, or unless interest were in arrear, be set aside as against a bond fide purchaser without notice that the security was satisfied, when, by the terms of the deed, a sale purporting to be so made was to exonerate the purchaser from inquiry, and to be deemed valid (l). The title to any surplus moneys after discharge of a mortgagee's claims out of the proceeds of sale . will follow the nature of the equity of redemption or be con- verted according as the sale takes place before or after the mortgagor's death, and according to the express provisions of the mortgage instrument (m) ; a right to such surplus will be barred if the equity of redemption be barred under the Statute of Limitations (n). Under the Land Transfer Act the registered proprietor of a registered charge with a power of'sale, mayat anytime after the expiration of the appointed time, sell the land as if he were registered proprietor (o), and may procure the purchaser or him- self to be registered as first proprietor (p). (A) Robertson v. Norris, 1 Gif. 421. (m) Jones v. Davies, L E. 8 Ch D (i) Jenkins v. Jones, 2 Griff. 99. . 205. (i) Mayer v. Murray, L. E. 8 Ch. D. (m) In re Alison ; Johnson v. Moun- 424. aey, L. R. 11 Ch. D. 284. (I) Dicker v. Angerstein, L. R. 3 Ch. (o) S. 27, 38 & 39 Vict. c. 87- G R 20 D. 600. ip) Hid., s. 68. . • • ACTIONS AND OTHER REMEDIES ON SECURITIES. 481 Section IV. Realization and Bedemption of Mortgages and Pawns of Personal Property. A mortgagee of personal property is in all cases entitled to have his security realised either by foreclosure {q) or sale (r) ; a pawnee, on the other hand, is only entitled to a sale (s), but such sale, subject to the provisions of the Pawnbrokers, the Factors, the Merchant Shipping, or other Special Acts of Parliament, may in every instance be extra-judicial {t). It is frequently laid down that a similar extra-judicial power of sale belongs to a mortgagee of personalty, and undoubtedly such is the law in the case of mortgages of stock {u) ; with respect, however, to other mortgages of personalty, there seems to be no express decision in favour of the general proposition, any supposed authorities for that position having proved on our investigation to be cases of pawn and not of inortgage {x). In the absence of an express power of sale, it may well be doubted if the mortgagee of a chattel has the right to sell without application to the Court {y) ; indeed, there is a recent dictum that the mortgagee of a policy would have to seek judicial interference to effect a sale of his security {z). The mode of obtaining foreclosure or judicial sale of personal property is by action instituted in the Chancery Division {a) ; such action is prosecuted in a manner and with consequences similar to what we have above described (&). An action for redemption of (}) Sladeu. Eigg, 3Hare35j Wayne 193; ante, p. 157. 1). Hanha,in, 15 Jur. 506. W See oases cited, I. Fisher Mortgs., (r) Harrison v. Hart, 2 Eq. Ca. Abr. 3rd ed., pp. 485, 486, note («). 725 ; 15 & 16 Vict. c. 86, s. 48 ; amte, (y) See Maugham i). Sharpe, 17 C. B. pp. 153, 157, 164, 238, note («) ; II. N. S. 443. Seton Decrees, 4th ed., p. 1104 (Ships), (z) Hinds v. Blacker, 1 L. K. Ir. 240, p. 1092 (Stock). per Ball, L. C. (!) Carter v. Wake, L. R. 4 Ch. D. 605. (a) S. 34, 36 & 37 Vict. c. 66. (0 AMe, p. 242. (*) -A^nte, pp. 472—479. («) Tooker v. Wilson, 6 Bro. P. C I I •182 MISCELLANEOUS. chattels pawned or mortgaged may be brought in the Chancery Division, and prosecuted as above described (c) ; as a rule, however, it may be more expedient for a pawnor or mortgagor to tender the amount due, and claim a specific return of his property (d). Where an action is brought to recover, or a defendant in his statement of defence seeks by way of counter- claim to recover specific property other than land, and the party from whom such recovery is sought does not dispute the title of the party seeking to recover the same, but claims to retain the property by virtue of a lien or otherwise as security for any sum of money, the Court or a Judge may, at any time after such last-mentioned claim appears from the pleadings, or, if there be no pleadings, by affidavit or otherwise to the satisfaction of such Court or Judge, order that the party claiming to recover the property be at liberty to pay into Court, to abide the event of the action, the amount of money in respect of which the lien or security is claimed, and such further sum (if any) for interest and costs as such Court or Judge may direct, and that upon such payment into Court being made, the property claimed be given up to the party claiming it (e). Section V. Realization and Redettlption of Debentures and Lloyd's Bonds. The mode of enforcing debentures depends upon the particu- lar statutes under which the company or corporation by which they are issued has been constituted ; we shall, therefore, briefly indicate the several remedies appropriate to each of the four classes of debentures previously dealt with (/), premising the observation that all alike give a right of action against the (c) Kemp K. Westbrook, 1 Ves. 278, (c) 38 & 39 Vict. o. 77; 0. Hi. r 6 ante, pp. 472—477. (/) Atilt. yv- 269, 294. (d) Ante, p. 242. ACTIONS AND OTHEK REMEDIES ON SECURITIES 483 company or corporation by which they are issued in addition to the particular kinds of process of which we here treat (g). Debentures issued by Companies registered under the Companies Act. The holder of a debenture on which principal and interest is due may (1) petition to wind up the company (h) ; (2) apply by summons if the company be in course of winding up either to have his debt, charge, and priority established (i), or to be allowed to proceed by action to realise his security (k) ; (3) if the debenture create a charge or mortgage on property, sue for realization thereof on behalf of himself and all other the holders of similar debentures (Z). If the debenture be a mere bond, the holder cannot proceed against the property of the com- pany (m) ; in many instances, however, debenture bonds are secured by a trust or covering deed whereby the property of the company is vested in trustees with power to sell the same and apply the proceeds after default by the company in payment of the moneys due on such bonds (n) ; in such cases the trustees may either act upon their power of sale or institute an action for administration of the trust (o). The Court will exercise a discretion in granting a winding up order on the petition of a debenture holder when the winding up is opposed by the other debenture holders and creditors (p), but, as against the company, a debenture holder who cannot otherwise obtain payment is entitled on complying with the Act to a winding up order ex {g) Ante, pp. 270—294; s. 43, 28 & 29 ning Co., L. K. 8 Ch. D. 150. Vict. c. 78 ; s. 53, 8 & 9 Vict. c. 16 ; (m) In re The Florence Land and s. 86, 10 & 11 Vict. c. 16 ; s. 87, 25 & 26 Public Works Co., Limited ; jEb parte Vict. c. 89. Moor, L. R. 10 Ch. D. 530. (A) S. 79—82, 25 & 26 Vict. >;. 89 ; (m) Pahner's Company Preceds., pp. In re Paris Skating Kink Co., L. R. 5 402, 403, 440 ; Gordillo v. WegueUn, Ch. D. 959. L. R. 5 Ch, D. 287. (i) In re The General South Ameri- (o) In re Uruguay, &c., Railway Co., can Co., L. R. 2 Ch. D. 337. L. R. 11 Ch. D. 372. (h) Murray v. Bush, L. R. 6 H. L. (p) S. 86, 91, 25 & 26 Vict. c. 89 ; 55, 56. In re St. Thomas Dock Co., L. R. 2 (I) In re Longdeudale Cotton Spin- Ch. D. 116. 1X2 484 MISCELLANEOUS. debito justitice (g). An action by a debenture holder or mort- gagee to realise his security out of the property charged will (except under special circumstances) be allowed to proceed after a winding up order (r) ; in an action by a debenture holder a receiver and manager may be appointed (s). Debenture holders are within the Joint Stock Company's Arrangement Act (t). Debentures under Mortgage Debentvre Acts, 1865, 1870. The holder of a debenture, on which interest has been seven days or principal three weeks in arrear, is empowered to obtain the appointment of a receiver after giving the company written notice of his demand for payment with which they have failed to comply. The appointment is obtained, and the removal or other control of the receiver effected by petition or summons to the Chancery Division. A receiver so appointed has power to receive moneys and payment due on the registered securities of the company and apply the same in discharge of the principal and interest due on the debentures pm-i passu (u). Debentures pursuant to Companies Clauses Acts, 1845, 1863. The holder of these debentures is also empowered to obtain the appointment of a receiver under the conditions and with the powers previously described (cc) ; such a specific remedy is held to be a virtual exclusion by the Legislature of the ordinary redress by foreclosure or sale {y). Debentures pursuant to Commissioners Clauses Act, 1847. The holder of these debentures is also empowered to obtain the appointment of a receiver under conditions and with powers (q) In re Western of Canacla Oil, p) 33 k 34 Vict. o. 104 ; Slater v. Land, and WorkB Co., L. R. 17 Eq. 1. Darlington Steel Co., L. R. 6 Ch D (r) S. 87, 25 & 26 Viot. o. 89 ; In re 627. , ^. xi. o ^.n. u. Longdendale Cotton Spinning Co., L. R. («) S. 41, 42, 44—46, 28 & 29 Viot. 8 Ch. D. 150; Lloyd r. Lloyd & Co.; c. 78. L. R. 5 Ch. D. 339 ; ante, p. 483. (») Ante, pp. 285, 287 (») P«ek r. Trismaran Iron Co., L. R. {y) In re Heme Bay Waterworks 2Ch. D. 115. Co., L. R. 10 Ch. D. 42. ACTIONS AND OTHER REMEDIES ON SECURITIES. 485 Similar to those of a receiver appointed under the Companies Clauses Act, 1845 (2:). Lloyd's Bonds. The remedies of a holder of a Lloyd's Bond depend upon the nature of the instrument and the constitution of the body- issuing the same (a) ; according as such body is a company registered under the Companies Act, or a corporation subject to the Companies Clauses Acts, redress similar to that afforded a debenture holder may be respectively obtained (6). Suction VI. Mode of enforcing Assignments. To what we have elsewhere said on the remedies of an assignee of a chose in action (c), or of a mortgagee (d), it is here only requisite to draw attention to the distinction between an assign- ment which constitutes a mortgage and an assignment which constitutes a trust to secure a charge with power of sale or a mere charge. In the latter two cases the judicial mode of realization is by decree for sale, not for foreclosure (e). Section VII. Mode of enforcing Liens. Liens may be distinguished into two classes according as they confer (1) a mere right of retainer, (2) a right to realise the property over which they are claimed ; to the former class (2) Ante, pp. 285, 294. {d) Ante, pp. 472—482. (a) AiUe, p. 299. («) Tennant ,<. Trenchard, L. E. 4 (6) Ante, pp. 482 — 485. Oh. 537 ; Sampson r. Pattison, 1 Ha. (c) Ante, pp. 316—319, 322—326 533. 4<86 MISCRLLANEOUS. belong simple possessory liens (/) and vendor's lien on personal property, except so far as modified by the Factors Acts (g)'; to the latter class belong vendor's lien on real property (h), liens in particular trades and professions which by custom or statute may be actively enforced (i), maritime liens (k), and equitable liens (I). Formerly there was no remedy on a lien conferring a mere right of retainer other than the retainer itself; nor could any person claiming such lien be compelled to deliver up the pro- perty when his claim was disputed in an action, until the same was determined against him ; under the law as it now exists an interlocutory order for delivery up of property other than land may, as we have seen, be made in such circumstances on pay- ment into Court of the amount for which the lien is set up (m). Vendor's and equitable liens on real property are enforced by action in the Chancery Division (n) ; the object and prosecution of such action is in all material respects similar to an action for sale by a mortgagee (o). The most important trades and professions in which a par- ticular lien authorises an application of the property affected to the discharge of the lien holder's demand are those of innkeeper, banker, and factor ; the conditions whereon and the manner wherein such application may be made in the above and other cases have been already described (p). Maritime liens are enforced by action in the Admiralty Divi- sion; such actions may be either in rem, or in personam, — the procedure being jointly fixed by the Judicature Acts and Orders and such of the Rules and Orders of the former Admiralty Court as do not conflict therewith (^q). An action m rem is commenced by writ of summons calling upon the owners of or the parties in*erested in the property proceeded against to enter an appear- (/ ) Ante, pp. 348—363. (m) Ante, p. 482. (g) Ante, pp. 336—847. (m) S. 34, 36 & 37 Vict. (A) Ante, pp. 329—336. (o) Ante, pp. 329, 335. (i) Ante, pp. 354—363. {p) Ante, pp. 354—363. (*) Ante, pp. 364-375. {q) S. 34, 36 & 37 Vict. («) ArUe, pp. 375—377. 38 & 39 Vict. u. 77. 0.66. u. 66 : s. 18, ACTIONS AND OTHER REMEDIES ON SECURITIES. 487 ance within eight days from service of the writ (r) ; the service is eifected against ship, freight, or cargo on board by nailing the original writ for a short time to the ship's mainmast, and, on taking off the process, leaving a true copy in its place ; or, against cargo landed or transhipped, by leaving the original writ for a short time thereon, and on taking off the process, leaving a true copy in its place ; or, against cargo in the hands of a custodian who will not permit access thereto, by service on such custo- dian (s). At any time after the issue of a writ of summons in an action in rem, and after the prescribed aflSdavit has been filed, a warrant to arrest the property may be obtained (t) ; such warrant is executed by the Marshal of the Admiralty Division or his substitutes, and must be filed within six days from service in the registry (u) ; when once arrested, a citation in rem and caveat against release of the property may be obtained in any subsequent action (x). A foreign vessel that has done damage to a British subject may, on coming within the territorial waters of the United Kingdom, be seized by summary proceedings (y). In an action in rem the plaintiff must deliver his statement of claim within twelve days from the defendant's appearance (z) ; the pleadings then proceed as in an ordinary action. Judgment establishing a maritime lien is or is not realised out of the res according as the same continues in or has been released from arrest ; if the res continues in arrest, then a judicial sale and realization out of the proceeds may be ordered ; if the res has been released on bail bond, then a monition to the obligor and his sureties orders payment of the claim by a given day ; if the res has been released on payment into Court, an order for pay- ment thereout may be immediately obtained (a). (r) Ibid., 0. ii. r. 7a ; App. A., Pt. I., (x) Rules of High Court of Admiralty, No. 4a. r. 16. (s) im., 0. ix. rr. 10a— 12. {y) S. 527—529, 17 & 18 Vict. c. 104. \t) Ihid., 0. V. r. Hi ; The Constxtu- (z) 38 & 39 Vict. c. 77 ; 0. xxi., r. 3. tion, L. E. 4 P. D. 39: (a) Williams and Bruce's High Covirt (u) lUd., 0. ix. r. 9a. of Admiralty, 227—229. 488 MISCELLANEOUS. Section VIII. Actions and other remedies i/n, the Gov/nty Court. Of Inferior Courts (6), before which an action or other civil remedy on a security may be prosecuted, the chief are the County Courts, which now possess a limited Common Law, Equitable, and-^when specially conferred — Admiralty, jurisdic- tion (c). A County Court action is commenced by plaint and summons, such plaint is entered with the registrar of the Court, and thereupon particulars of the plaintiff's demand must in all cases, except that of an ordinary summons for a claim not exceeding 40s., be filed {d). A pecuhar procedure analogous to that by specially indorsed writ (e), and the procedure under the Bills of Exchange Act (/), or to realise a security on property may, to the extent of the County Court jurisdiction, be adopted in a manner somewhat similar to what obtains in the High Court (g). Under his Common Law jurisdiction a County Court Judge has power to entertain an action for a debt or liquidated demand or for a claim under the Bills of Exchange Act for any sum not exceeding £50 Qi), provided that in the latter case the sum claimed be not less than £10 (t) ; by due consent of the parties the above jurisdiction may be extended to claims of any amount {k). Under his equitable jurisdiction a County Court Judge has power to entertain a suit or proceedings for the execution of any (6) Ante, p. 461. (/) 18 & 19 Vict. o. 67. Order in (c) 9 & 10 Vict. c. 95, s. 58 ; 13 & 14 Council, 30th January, 1856 ; 0. viii. Vict. c. 61, s. 1 ; 28 & 29 Vict. c. 99, r. 33; 0. xviii. r. 3; xxxviii. rr 47— s. 1 ; 31 & 32 Vict. c. 71, ss. 2, 3 ; 32 49. & 33 Vict. c. 51, o. 2. (g) 28 & 29 Vict. o. 99, s. 1. (d) County Court Kules, 1875, 0. iv. (h) 9 & 10 Vict. c. 95, s. 58 : 13 & 14 r. 1 ; O. vii. r. 1. Vict. c. 61, s. 1. (e) Ibid., 0. viii. rr. 27—29 ; 0. iv. (i) Order in Council, 27th July, 1863. r. 5 ; Porms, 8, 15, 16, 18, 19 ; 38 & 39 (k) 19 & 20 Vict. c. 108. s 23 Vict. c. 60, 8. 1. ACTIONS AND OTHER REMEDIES ON SECURITIES. 489 trust, or under the Trustee Relief Act, or for foreclosure or redemption, or for enforcing any charge or lien where the value of the trust property or the mortgage, charge, or lien respectively does not exceed £500 (Z). By Order in Council (m) Admiralty jurisdiction has been conferred on certain County Courts for the following claims : (1) for salvage where the value of the property saved does not exceed £ 1 000, or the amount claimed does not exceed £300 ; (2) for towage, necessaries, or wages where the amount claimed does not exceed £150; (3) for damage to cargo, or damage by collision, or damage to ships, whether by collision or otherwise, where the amount claimed does not exceed £300 ; (4) for the use or hire of any ship, or in relation to the carriage of goods in any ship, or for tort to goods so carried, where the amount claimed does not exceed £300 ; (5) for any of the above demands to any amount where the parties so agree (n). Actions within the Common Law (o) or Equitable (p) jurisdic- tion of the County Court may, if instituted in the High Court, be ordered to be tried in the County Court on due application to a judge at chambers. Moreover, a plaintiff suing in the High Court who only recovers £20 in an action founded on contract, or £10 in an action founded on tort, will not be en- titled to his costs unless the same be specially allowed (j) ; there is a similar provision as to a plaintiff suing in Admiralty cases where the amount recovered does not exceed the limit of the County Court jurisdiction (r). Certain actions may also be transferred from the County to the High Court (s). (0 28 & 29 Vict. 0. 99, s. 1 ; Ward v. Rly. Co., L. E. 4 Q. B. D. 81 ; Pontifex Wyld, L. E. 5 Oh. D. 779. v. Midland Rly. Co., L. R. 3 Q. B. D. (to) Dated 14th Jan., 1869, pursuant 23 ; Bryant v. Herbert, L. R. 3 C. P. to 31 & 32 Vict. c. 71, ss. 2, 3 ; 32 & 33 D . 389, 189 ; Blake ■;;. Appleyard, L. R. Vict. c. 51, fl. 2. 3 Ex. D. 195 ; Staple v. Young, L. R. (n) Bid. 2 Ex. D. 324. (o) S. 7, 30 & 31 Vict. c. 142 ; Insley {r) S. 9, 31 & 32 Vict. c. 71 ; Hewitt V. Jones, L. R. 4 Ex. D. 16 ; Foster v. v. Corry, 39 L. J. Q. B. 279. Usherwood, L. R. 3 Ex. D. 1 ; Osborne (s) 28 & 29 Vict. c. 99, s. 3 ; 36 & 37 V. Hanburg, L. R. 1 Ex. D. 48. Vict. c. 66, s. 90; O. xx. County Court (p) S. 8, 30 & 31 Vict. c. 142. Rules, 1875. (g) Ibid., a. 5 ; Fleming v. Manchester 490 CHAPTER XXXV. THE MONblY MARKET AND THE STOCK EXCHANGE. PRELIMINARY OBSERVATIONS. Money is the medium of exchange, but it is also a com- modity; securities for money are either securities for money as the medium of exchange or securities for money as a commodity. If A. take B.'s promissory note for a debt of £1000, the £1000 is so much of the medium of exchange, and the note is security therefor ; if C. lend D. £1000, at five per cent, interest, the £1000 is a commodity, and the mortgage is security for the same. Any instrument or transaction which may be employed as a security for money as the medium of exchange may like- wise be employed as a security for money as a commodity, and that with similar legal consequences. Thus, a bill of exchange drawn by A., accepted by B., and indorsed to C, will possess similar attributes whether C. be holder in the capacity of creditor or in that of discounter. Hitherto we have treated indifferently of securities for money, whether as the medium of exchange or as a commodity ; in the present chapter we shall confine ourselves to securities for money as a commodity. There are two modes whereby the buyers and sellers of a commodity much in request may be brought together, viz., directly, by mutual knowledge of each other's respective wants'; indirectly, through the intervention of a given person or place by whom or at which the business of dealing in the commodity is carried on. Thus, a man having a horse to sell may offer the THE MONEY MARKET AND THE STOCK EXCHANGE. 491 same to a neighbour who he knows is anxious to buy, or he may send the horse to be sold at Tattersall's to whatever buyer may be found. The middleman who brings buyer and seller together is denominated a factor or broker, according as he is or is not respectively intrusted with possession of the property to be disposed of; the place where the dealing goes on is termed the market, an appellation which is also given to the supply and demand offered by sellers and buyers. The remuneration paid to the middleman is styled commission, and this may consist of reward for acting merely as agent, or of such reward and an additional compensation for acting as del credere agent— that is, for acting as an agent who guarantees performance of the con- tract on the part of his principal. Principals who contract through the medium of an agent acting within the scope of his authority are bound to the same extent as if they had personally contracted — Quifacit per alium, facit per se; and parties who contract in a market are bound by such of the rules and customs thereof as are incorporated with the contract. " It is an axiom of the law of principal and agent that a broker employed to sell cannot himself become the buyer, nor can a broker em- ployed to buy become himself the seller without distinct notice to the principal, so that the latter may object if he think proper. A different rule would give the broker an interest against his duty to pass off a bad bargain or inferior goods. It is also an elementary proposition that a custom of trade may control the mode of performance of a contract, but cannot change its intrinsic character. It may regulate as extrinsic what is done in the market, where the contract does not provide otherwise. It cannot overrule what is agreed upon between the parties, whether intrinsic or extrinsic. The agent may perform the business he is engaged for according to the usages of the market in matters of detail, although the principal be unaware of such usage, because every authority to do a thing, not specifying the way, implies authority to do it in a reasonable way, which the usual way primd facie is. But no usage unknown to the principal can justify a broker in converting himself into a 492 MISCELLANEOUS. principal seller " (a). A custom in a particular market that a broker who has purchased, and is purchasing, goods of a particular kind in his own name, may take portions of those goods and supply them to principals who have employed him in his character of broker to buy such goods for them, is one of a peculiar nature, and cannot be supported as against a principal not proved to have been acquainted with it when he gave his order ; nor will the mere fact of employing a broker to execute a commission as a broker, in a market where such usage pre- vails, make the principal liable under it (b). Where a broker or other agent signs a contract without naming a principal in such contract, then, whether such principal is disclosed or not, he will be liable unless bis liability be determined by election of the other contracting party to look to the agent only (c). A broker, however, is not entitled or liable on a contract which he signs as broker for a principal therein named (d) ; so, if no principal be named, provided that it appear on the face of the contract that the broker is contracting as such for a principal, and not for himself as principal (e), but in the latter case the custom of a particular trade may qualify the contract so as to make the broker personally responsible. ' Thus, where the following con- tract note was addressed by the defendants — fruit brokers — to the plaintiffs, the vendors : — " We have this day sold for your account to our principal" so many tons of raisins. (Signed) " M. & W., brokers" — it was held that the custom of the London fruit market rendering the brokers personally liable was admis- sible in evidence (/). What precise language adequately describes the character of an agent so as to debar one entering into a contract on behalf of another from individual rights or (a) Robinson v. MoUett, L. R. 5 0. E. 62. P. 656, per WUles, J. ; S. C. L. R. 7 (d) Fairlie v. Fenton, L. R. 5 Ex. H. L. 802 ; 7 C. P. 84. 169. (6) Ibid. (c) Sharman v. Brandt, L. R. 6 Q. B. (c) Balder v. Dobell, L. R. 6 C. P. 720. 486 ; Thomson v. Davenport, 9 B. &C. (/) Fleet v. Murton, L. R. 7 Q. B. 78; Addison i;. Gandassequii 4 Titunt. 126; Humfrey ti. Dale, 7 B & B 266; 574; Patterson v. Gandassequi, 15 E. B. & B. 1004. THE MONEY MA-RKBT AND THE STOCK EXCHANGE. 493 responsibility is somewhat difficult to determine. If a person subscribe a contract as agent or broker, he is neither entitled nor liable (g) ; but " where a contract is signed by a person without any words importing agency, the person so signing is by virtue of the contract both entitled and liable, unless in the body of the contract a contrary intention is clearly shown " (h). It would seem, however, that it is immaterial whether the cha- racter of agent appear from the signature or only in the body of the contract ; the important point is to distinguish between words of mere description and words intimating the fact that one is acting as agent ; thus, the following letter : — " Mr. George Gadd, — We have this day sold to you, on account of James Morand & Co., Valencia, 2000 cases Valencia oranges. — J. C. Houghton & Co." — ^was held sufficient to show that Houghton & Co. were acting as brokers (i). The fundamental facts and principles we have now stated apply as much to the buying and selling of money and securities for money as to the buying and selling of any other commodity; thus, money may be bought and sold privately or in the market — directly or through the intervention of an agent — the rights and liabilities arising out of such purchase or sale being determined by the express terms of the contract, the nature of the com- modity, and the rules or usages of the market, as legally incor- porated into the transaction. We propose to consider the legal bearings of dealings in money and securities in general, as specially modified by the nature of the commodity and the rules of the Money Market. The proposed inquiry may be prosecuted under the following heads, viz. : — I. Money and Securities as Commodities. II. The Discount Market. III. The Stock Exchange. (g) Fairlie v. Fenton, L. E. 5 Ex. {i) Gadd v. Houghton, L. E. 1 Ex. 169 ; Alexander v. Sizer, L. R 4 Ex. D. 3.57 ; Southwell v. Bowditoh, L. E. (A) Paioe v. Walker, L. E. 5 Ex. 176, 1 0. P. D. 374 ; Hough v. Manzanos, per Kelly, C. B. L. E. 4 Ex. D. 104. 494 MISCELLANEOUS. Paet I. MONET AND SECURITIES AS COMMODITIES. Section I. Discount and Investment Securities. As itself an article of commerce money may be employed in two different ways : — (1) in the way of trade to produce a profit, as where a capitalist discounts bills of exchange, or makes short loans to be repaid with a bonus ; (2) in the way of investment to produce an income, as where money is permanently lent out on mortgage or otherwise at a certain rate of interest. Securities for money have a corresponding twofold function ; they serve as a means of ensuring payment either of a gross amount or of an annual or other periodical dividend, with or without ultimate repayment of the principal from which such dividend actually or hypothetically accrues. Bills of exchange and promissory notes are practically the only securities which directly ensure the payment of money employed in the way of trade to produce profit ; all securities, however, may indirectly subserve the same purpose by being mortgaged or pledged for short loans. So, on the other hand, may all securities be made a means of ensuring payment of money employed in the way of investment to produce income ; but bills of exchange, promissory notes, and personal securities in general are seldom so employed with advantage. Securities, therefore, may be distinguished into discount and investment securities, according as they respec- tively reserve the payment of money employed to produce profit or to produce income. Of discount securities we shall treat hereafter (k) ; investment securities engage our immediate atten- tion. Of such securities there are two classes — (1) private securities, or securities only open to individual investors; (2) public securities, or securities open to investment by the community {k) Post, p. 604, et sej. THE MONEY MARKET AND THE STOCK EXCHANGE. 495 at large : the former are not dealt in in the open mai'ket, are therefore not the subject of speculation, yield a fixed income, and are usually of a terminable character ; the latter are bought and sold in the open market, are the subject of constant specu- lation, may yield either a fixed or varying income, and may be either of a terminable or of a perpetual character. By a security of a terminable character we mean a security which ensures payment of a certain annual or other periodical sum for a definite period ; by a security of a perpetual character we mean a security which ensures such payment either for an absolutely indefinite period or for a period definable only at the will of the person or body liable thereon. A mortgage is a terminable security : so, a bond or covenant securing an annuity or rent- charge for a given number of years or for a life or lives ; on the other hand, a bond or covenant securing an annuity or rent- charge either for ever or until the grantor shall offer to redeem the same, is a perpetual security. Annuities and rent charges are the chief subjects in which money is invested in private securities of a perpetual character ; a security ensuring payment of an annuity or rent-charge is distinguished from other private securities by the fact that it involves no obligation to repay the original principal advanced, and by the further fact that it may be made to descend as real or personal property, whereas all other private securities can only devolve as personal property. Part I. — Section II. Public Securities in General. Public securities, to which we shall henceforth devote our remarks, are likewise either terminable or perpetual; under ,the former category fall bonds, debentures, and other instru- ments giving a right to repayment of a principal sum at a future period, with interest thereon in the meantime ; under the 496 MISCELLANEOUS. latter category fall stocks and shares in companies. In the foregoing statement it will be observed that the term public security is used in two different senses, — first, to signify the instrument under which an investor holds his title ; secondly, to signify the subject of investment. It is in this second sense the term is commonly understood. As so understood, there are two distinct kinds of investment to which the word is applied : I. Investments in public loans ; in these the investor becomes interested as an annuitant or creditor. II. Investments in the capital of public bodies ; in these the investor becomes interested as a partner. The terms of a public loan may be that the same shall be redeemable at a given time by repayment of the principal, in which case the loan and debt are sometimes designated as unfunded ; or that the same shall be irredeemable or redeemable only at the option of the borrower, in which case the loan and debt are sometimes designated as funded : thus, the debt of a railway company on its debentures (l) is unfunded, on its debenture stock (m) funded. To the phrases funded and unfunded, however, a more restricted signification is usually attached ; their employment is limited to expressing the contrast between irredeemable and redeemable Government loans : thus, a Government loan, the subscribers to which obtain in return for every £100 subscribed an annuity of £3, not re- deemable otherwise than at the option of the Government, is termed a funded loan or debt ; whilst a Government loan, the subscribers to which are entitled to have the amounts they subscribe repaid at a given time, is termed an unfunded loan or debt. At the present day the interest and repayment of the funded and unfunded debt contracted by the Government of the United Kingdom are defrayed in precisely the same manner, viz., out of the supplies annually voted by Parliament. Supplies so appropriated, and the principal of the debt, both funded and unfunded, are called indifferently the " Funds," the " British Funds," the "Government Funds," the "Public Funds," the {I) Ante, p. 281. (m) Ante, p. 286. THE MONEY MARKET AND THE STOCK EXCHANGE. 497 "Government Securities" (n). Literally the word "fund," derived from the Latin fundus, signifies a farm or stock — that which produces something, or from which something grows. As first applied to government loans, it signified the particular tax or source of revenue on which a particular loan was charged, it being formerly the practice to assign particular taxes to the discharge of particular debts; but it has long signified the principal of the loans thems&lves (o). In the case of foreign securities, the terms funded and unfunded bear a twofold interpretation ; sometimes they indicate a contrast similar to that between English government securities ; sometimes a con- trast between securities, to which a fund is, and those to which a fund is not, specifically appropriated. The words stock and stocks denote a genus, of which the subjects denoted by fund and funds are species ; thus, not only are our own govern- ment funds and those of foreign countries spoken of as public stocks and foreign stocks respectively, but generally any public fund or loan in the profits whereof the parties interested are entitled to participate, without liability to contribute any further amount than that already subscribed, and whereof the capital is indefinitely divisible is designated as stock. There are various general enactments by which paid-up shares in companies may be converted into corresponding amounts of stock (p). Here it is sufficient to point out the distinction between such shares and stock. " Shares are not necessarily converted into stock as soon as they are paid up ; they may exist either as paid-up shares or as not paid-up shares. But as regards stock, that can only exist in the paid-up state. It cannot (and I follow now the words of the Consolidation Act, 8 & 9 Vict. 0. 16, s. 61) be railway stock until it is consolidated, and shares in a railway company cannot be consolidated until they are paid up . . . There is 'a certain extent of change as well as consolidation in these paid-up shares. They are (») Slingsby v. G-rainger, 7 H. L. C. ary, " Funds." 280. ' (p) Post, p. 502. (o) McCuUooh's Commercial Dictiou- K K 498 MISCELLANEOUS. changed from ordinary shares in this respect, that they are no longer incapable of being sub-divided " (q). In popular language, however, a stockholder in a railway is known as a shareholder, and in law he possesses so much of the same essential character that a bequest by a testator, who was both a share and a stock- holder, of all his "railway shares" was held to pass the stock (r). With these general observations we may proceed to consider briefly the various kinds of public securities. Pakt I. — Section III. The British Funds. I. The funded debt, redeemable at par at the option of the government, includes the following annuities : — 1. Three per cent, consols, originated in 1751 by an Act of Parliament, consolidating (hence the name which is an abbreviation for consolidated annuities) several separate stocks at three per cent, into one general stock. 2. Three per cent, reduced, established in 1757 by conver- _ sion of annuities at a higher rate. 3. New three per cents., established in 1844. 4. New three and a half per cents., established in 1830. 5. New five per cents., also established in 1830. 6. New two and a half per cents, guaranteed against reduction till 1894. 7. Three per cent. Bank of England debt. 8. Three and a half per cent Bank of Ireland debt (s). iq) Morrice v. Aylmer, L. R. 7 H. L. (s) McCuUoeh's Commercial Dic- 717, per Hatberley, Ld. tionary, " Funds ;" Penn on the Funds. (r) Hid., 1 Ch. D. 148. THE MONEY MARKET AND THE STOCK EXCHANGE. 499 II. Unfunded debt, redeemable according to the express conditions under which it is constituted includes : 1, exchequer bills ; 2, exchequer bonds ; 3, treasury bills (t). The funded debt is the public national debt. The title of a stockholder is constituted by an entry on the books of the Bank of England, which acts as the agent of the government. To effect a transfer the stockholder or his agent, duly authorised under a power of attorney, attested by two or more credible witnesses, must subscribe the entry; the transferee may then, if he thinks fit, intimate his acceptance of the transfer (u). On the death of a stockholder his interest is transferable by his executors or administrators, notwithstanding any specific bequest thereof; but before allowing such transfer the bank may insist on probate of the will or letters of administration being left with it for registration, and that all the executors who have proved shall join in the transfer (x). The books of the bank may be closed on the day preceding that when the dividends are payable, but are not to be closed at any time for more than fifteen days. The person inscribed as stock- holder on the day of closing is entitled as against his transferee to the current half-year's dividends (y). The holder of stock in the three per cents., three per cents, reduced, or new three per cents, may obtain a stock certificate with coupons entitling bearer to dividends for stock to the amount of £50, or any multiple thereof not exceeding £1000 (z); but trustees are dis- abled from holding stock certificates, nor is notice of any trust in respect of any stock certificate or coupon receivable by the bank (a). Stock represented by a certificate is not transferable by entry on the books so long as the certificate is outstand- ing (6) ; the coupons are to be for not less than five years' divi- dends from date of the certificate, and are payable within three or five days from presentation at the head or branch establish- ments, respectively, more than ten miles from the head establish- («) Ante, pp. 65—72. {y) Ibid., s. 25. («) S. 22,-33 & 34 Vict. c. 71 (The (e) Ibid., ss. 26—28, 32. National Debt Act, 1870). (a) Ibid., ss. 29, 30. (x) Ibid., a. 23. (J) Ihid., a. 31. K K 2 500 MISCELLANEOUS. ment (c). The half-yearly dividends on the public stocks formerly due on the 10 th are now due on the 5th October in each year ; and a stockholder may now have his dividends paid by dividend warrants (cZ) transmitted through the post; such warrants may be crossed as and with the same consequences as a cheque (e). The bank stands in relation to stock as the depositee of goods in relation to goods ; the bank can only be made responsible for a transfer after distinct notice given of a claim upon the stock (/); a secret trust as against the party who has the open legal title will not affect the bank {g). The bank will be com- pelled in a Court of equity to reinvest stock in the name of a trustee sold out by his co-trustee under a forged power of attorney Qi); and, in general, it is the duty of the bank to prevent an unauthorised transfer (i) ; but though the property in stock is not transferred from the owner by being placed, under a forged power of attorney, to the name of another person in the books of the bank, yet the holder may, by his negligence, disable himself from recovering stock so transferred (/c). To what we have elsewhere said of the British unfunded securities (Z), we need only add that trustees are now enabled to invest in exchequer bills as well as in two and a half per cents., three per cents, reduced, and new three per cents, (m). Part I. — Section IV. Indian and Colonial Government Securities. The Acts which authorise loans for the Indian government 11 ^■' ^l- ^*' ^^- Si""- 475. See 33 & 34 Vic^t. c. 58. (q!) Partridge v. Bank of England, (i) Davis t;. Bank of England, 9 Moo. 15 L. J. Q. B. 395 ; 13 L. J. Q. B. 281. 747 ; 5 B. & 0. 185. (e) 32 & 33 Vict. m. 104 ; ante, pp. (Ic) Cole v. Bank of England, 10 A. iAti u . ^, * ^- 437 ! Bank of Ireland v. Evans' •p (/) ^umberetone v. Chase, 2 Y. & C. Charities, 5 H. L. C. 389. , i r A -^^ , n, ■. W -^w**. P- "5, et sea. ? Lady Mayo^ Case Lofft. 65. (m) 23 & 24 Vict. c. 38, s. 12 ; G. 0. (A) Sloman v. Bank of England, 14 1861. THE MONEY MARKET AND THE STOCK EXCHANGE. 501 allow the same to be created by the issue either of stock or of bills, bonds, and debentures (n). Such stock is usually un- funded in the sense of being repayable at a given date. Colonial government securities are created by the special Acts of the several colonies, wherein the terms of the loan are specified. Part I. — Section V. Foreign Stocks. The terms upon which foreign governments borrow are of an extremely variable character ; the important points to dis- tinguish are whether the loan be funded or unfunded (o), and whether the title of a stockholder be transferable by an instru- ment of a negotiable character (p). Upon this subject we may refer to our former remtirks (g), and to what we shall have to say at a subsequent stage (r) ; here we may observe that stock in the foreign funds means a foreign security for which the faith of the foreign government is pledged (s), and that under such government is comprehended any of the United States of America (t), but no British colonies (u). Part I.— Section VI. Stock and Shares in Railways. Stock and shares in English railway companies may be dis- tinguished into — 1, ordinary ; 2, preference ; 3, guaranteed, and 4, debenture stock.. The distinction between paid-up shares and (m) Ante, p. 72. (s) Ellis v. Eden, 23 Beav. 543. (o) AnU, pp. 496, 497. (t) Cadett v. Earle, L. K. 5 Ch. D. (p) Ante, pp. 263, 264. 710. (2) Ante, pp. 74, If.. (a) Hull v. Hill, L. E. 4 Ch. D. 97. (r) Post, pp. 505, 506. 502 MISCELLANEOUS. the stock into which they may be consolidated under the 8 & 9 , Vict. c. 16 has been already pointed out (x). Proprietors of such stock are entitled to the same dividends and privileges as owners of corresponding amounts of shares {y). Where a rail- way company is authorised by special Act to raise additional capital, it may do so by the creation either of new ordinary shares or stock, or new preference shares or stock {z) ; in either case, if the existing ordinary shares be at a premium, the first offer of the new shares and stock must be made to the existing shareholders (a). As the name implies, the distinction between preference shares and stocks and other shares is that the divi- dends thereon are first payable out of the profits realised (6), but no dividends can be declared which would reduce capital, nor can a deficit of dividend in one year be made up out of the profits of another year (c). Railway stock is included in " government or other stock " (d), but preference railway stock is not included in " funds of companies incorporated by Act of Parliament " (e), nor are French redeemable railway shares within a power to invest in the " bonds, debentures, or stocks of any colony or foreign pountry " (/). Shares in railways are transferred by deed duly executed by the transferor and transferee, and by entry of the transfer on the register of shareholders ; until such entry the title of the transferee is not complete {g). Guaranteed shares and stocks are in ordinary parlance such as are specifically secured on a given subject other than the mere profits of the undertaking ; thus, shares or stock entitling the holders to a charge on the surplus lands of a railway company would be described as guaranteed. Sometimes, how- ever, the term is used in almost the same sense as the word preference or preferred ; sometimes in the sense of a guarantee (x) Ante, pp. 497, 498. (rf) Be Matheson, 1 D. M. & G. 448. [y) 8 & 9 Vict. c. 16, as. 61—64. (e) Harris v. Harris, 29 Beav. 107 ; (z) 26 & 27 Yiot. c. 118, ss. 12—15. Stewart v. Sanderson, L. E. 10 Eq. 26. (a) Ihid., ss. 16 — 21. (/) In re Langdale's Settlement (I) Sturge V. Eastern Union Rly. Trusts, L. K. 10 Eq. 39. Co., 7 De G. M. & G. 158 ; Henry v. (j() 8 & 9 Vict. o. 16, ss. 14, 15, Sch. Gt. Northern Kly. Co., 27 L. J. Ch. 1. B. ; Hodge's Railways, 6th ed., 101, et (c) 8 & 9 Vict. c. 16, ss. 120—123. sej. THE MONEY MARKET AND THE STOCK EXCHANGE. 503 properly so called (h). In the case of foreign railways a guarantee is frequently given by the foreign state ; so Indian railway stock is charged on the revenue of India. Part I. — Section VII. Stock and Shares in other Undertakings. There are many undertakings, such as dock, waterworks, canal, and gas companies, subject to the Companies' Clauses Acts, in which stock and shares are held on conditions similar to those on which stock and shares are held in railways. To these we need not more particularly allude. Of other stocks and shares some are held in companies incorporated by special statute or royal charter, some in companies registered under the Companies' Act. By the Companies' Act paid-up shares may be converted into stock (i) ; for such paid-up shares or stock, warrants may be issued on the terms previously described (j). The liability of a shareholder in a corporate body is deter- mined by the conditions of incorporation. Without express provision no member of a corporate body is individually liable for the corporate debts (k). A company may be registered under the Companies' Act with limited or unlimited liability ; according to the nature of such registration, a shareholder will be liable to contribute, respectively, the unpaid amount on his shares, or to the extent of the company's guarantee, , or indefinitely (k). {h) Smith V. Cork and Bandon Ely. (j) I. Lindley's Partnership, 4th ed.' Co., I. E. 3 Eq. 356 ; Bouch «. Seven- 382, 383 . oaks Ely. Co., L. E. 4 Ex. D. 133. (k) See In re Ennis & W. Clare Ely. (i) 25 & 26 Vict. c. 89, sa. 12, 28, 29, Co., 3 L. R. 94 ; Bath's Case, L. E. 11 Soh. I., Tab. A. Ante, p. 156. Oh. D. 386. 604 MISCELLANEOUS. Part II. THE DISCOUNT MARKET. Let A. be a merchant ia London, and B. and C. merchants in Paris, and let A. be B.'s debtor for £100 and C.'s creditor for a similar amount; under these conditions a bill of exchange drawn by A. on C. payable to B. will afford a simple and con- venient solution of their miitual obligations. Suppose, however, that C, instead of being A.'s, is D.'s (also a merchant in London) debtor ; then D. may draw on C. in favour of B. and sell the bill to A., and thus, again, a simple solution of obligations is effected. If D. have no creditor in Paris it will be as much for his advantage as for A.'s, that the debt due by C. should be so assigned. It would, however, be next to impossible that A. and D. should be directly brought together ; hence, the neces- sity for a market in which bills of exchange may be bought and sold. In the United Kingdom the business of dealing in bills is carried on by a class of persons styled bill brokers, who are also known under the name of foreign bankers — dealing in bills con- stituting the essential character of a banker abroad, as opening an account to be operated upon by cheques constitutes the essential character of a banker at home. Rothschilds are the greatest of foreign bankers, but so far are they from being bankers in the English sense that a member of their house sits as a director of the Bank of England— a position which no English banker is allowed to occupy (i). Bankers and bill brokers, then, are in this country totally different ; no doubt a banker may discount his customer's bill, but he does not make a trade of discounting ; that now practically belongs to the bill broker. It must not, however, be supposed that there is no connection between the two businesses; on the contrary, it would be [l] Lombard Street, by W. Bagehot, Chap. VtlU. THE MONEY MARKET AND THE STOCK EXCHANGE. 505 impossible for the bill broker to do without the banker, or for the banker to act as profitably without the bill broker. Owing to causes which it would be beyond our province to specify, our modern banking has assumed the form of a deposit system, wherein the banker is, as it were, a vast reservoir in which money is stored by his several customers to be drawn out by them as they require (m). To meet the daily demands of the persons who deal with him, a banker need only keep by him a small proportion of the aggregate amount committed to his care ; to provide against ordinary contingencies he need hold in reserve only about one-third of the sum that constitutes his ultimate liabilities, the remaining two-thirds he has at com- mand. Of this, he invests a portion in Government or other fixed securities, the rest he puts out as floating capital at interest on short loans repayable either at a given time, or after notice, or on demand. Such short loans are chiefly in request by bill brokers and stock jobbers, who, by the nature of their business, have to depend almost entirely on borrowed capital. The advance made to the bill broker is usually secured by a pledge of the bills he receives in the course of his business, that to the stock jobber by a pledge or mortgage of public securities. Public securities are the subject of either a legal (n) or an equitable (o) mortgage ; in either case, according to the custom of the London money market, an implied power of sale is given to the mortgagee on default of repayment by the next settling day. To what extent an equitable mortgagee by deposit obtains an unimpeachable title to public securities depends upon the nature of the documents deposited, the mode in which the security may be transferred, and the notice (if any) given to the officers by whom the list or register of legal holders is kept (p). If the rights of the holder of a public security are both evidenced and conferred by an instrument which passes by (m) Ibid., Chap. III. (o) Ante, p. 223, et seq. (») Ante, pp. 155—158. ip) Ante, pp. 306—309. 506 MISCELLANEOUS. mere delivery, as a stock or share warrant, or a negotiable bond or debenture, the mortgagee acquires a title as indefeasible as the pledgee of a bill of exchange payable to bearer (r) ; if, on the other hand, the rights of the holder of a public security are only evidenced but not conferred by a given instrument, or if, being so conferred, the instrument is non-negotiable, the mort- gagee acquires a defeasible title ; thus, the depositee of share or stock certificates, or of scrip, bonds, or debentures not legally transferable to bearer, takes a title subject to equities (s), and such title is liable to be defeated by the bankruptcy of the mortgagor where the security is not a chose in action within the exception in the order and disposition clause, and no notice of the mortgage is given (t). The bills pledged for an advance by a bill broker are of two kinds : (1) bills he has himself bought or discounted ; (2) bills pledged or entrusted to him by his customers to raise money on ; hence, we have to distinguish between discount and pledge. By the discount is meant the purchase of a bill for a certain sum of money, so as to transfer the absolute property therein to the purchaser or discounter ; by the pledge is meant the transfer of a bill by way of security, so as to vest a special property in the transferee or pledgee to the extent of the sum secured (u). As against the world at large, the discounter takes an absolute or qualified title according as the bills discounted are current and negotiable (x), or overdue (?/) and non-nego- tiable {z) ; thus, whatever be the sum paid by the discounter, he has a right to recover for his own benefit from the acceptor or other parties liable the whole amount for which negotiable bills are drawn, and in case of the bankruptcy of these parties he may prove for such amount; but no such proof will be allowed on sham bills, the true character of which is in the actual or constructive knowledge of the discounter at the time (»•) Post, pp. 507—509. («) Ajate, p. 241. (s) Ante, p. 224. {x) Ante, pp. 5, 7, 9. (e) Ex parte lAttledale; In re Pearae, {y) Ante, pp. 312, 313. 24 L. .T. Bkpy. 9, (s) Ante, pp. 3, 9. THE MONEY MARKET AND THE STOCK EXCHANGE. 507 of purchase. At the most, proof can only be admitted for the price given by him (a), and it would seem that proof by an accommodation holder would iii like manner be curtailed to the actual advance he had made (b), though it was formerly considered just to allow proof for the full amount of the bills, limiting the receipt of dividends to the sum advanced (c). An indorsement to the transferee is primd facie evidence that the transfer of a bill is by way of discount (d). The object of the indorsement, however, may be to enable the transferee to collect the bill when it falls due for the benefit of the transferor, or to raise money thereon to meet future advances by the transferee ; in this latter case the bill, so long as retained by the transferee, is a mere pledge applicable to the demands of the transferor (e). The drawer of a bill may transfer his right to have the proceeds of goods deposited with the acceptor applied in the first instance in retiring the bill to a discounter, who may then maintain a suit to have the goods applied accordingly (/) ; but in the absence of such transfer the dis- counter has no necessary claim upon the goods (g). If, however, the acceptor pledge bills accepted by him, and also all funds the drawer may remit to meet the bills, the pledgee will, on obtaining possession, be entitled to such funds as against the drawer, notwithstanding the subsequent dishonour of the accept- ance (h) ; but the drawee of a bill of exchange to cover goods included in a bill of lading cannot retain the latter without acceptance of the former (i). As against third parties the rights of the pledgee of a bill are similar to those of a discounter ; thus, a pledgee is entitled to recover the full amount for which a negotiable bill is drawn from the acceptor and other parties liable, and to prove for such amount on their bankruptcy. Of any surplus, however, re- (a) In re Gomersall, L. R. 1 Ch. D. (c) Ex parte Pease, 19 Ves. 25. 137 ; Jones v. Gordon, L. R. 2 App. (/) Inman v. Clare, Johns. 769. Gas. 616. (g) Ante, pp. 402—404. (6) Ibid.; Ex parte Sohofield; Ee (h) Banco de Lima i). Anglo-Peruvian Frith, 40 L. T. N. S. 464. Bank, L. R. 8 Ch. D. 160. (c) Mx parte Bloxam, 6 Ves. 449. (i) Shepherd v. Harrison, L. R. 5 H. (d) Ex parte Twogood, 19 Ves. 227. L. 116. 508 MISCELLANEOUS. covered beyond his own debt the pledgee will be trustee for the pledgor (Jc) ; moreover, to the extent of such debt only can the pledgee in an action against the pledgor whose name is on the bill recover, and in case of the latter 's bankruptcy, proof by the pledgee will be limited to the excess (if any) of such debt beyond the proceeds realised by a sale of the bill. Between the pledge of a bill payable to bearer and the pledge of a corporeal chattel there is this fundamental difference : that by a wrong- ful disposition the pledgee may absolutely bar the pledgor's rights in the bill, but cannot affect his rights in the chattel (I) ; thus, a bond fide transferee of the bill for value without notice that his transferor holds only as pledgee obtains as good a title as if the transferor were full owner, and if the transfer be by way of repledge for a sum exceeding that due on the original pledge, the original pledgor can only redeem the transferee by tender of the amount advanced on the repledge (m). A transferee from the pledgee of a bill payable to bearer having notice of the pledge at the time of transfer can take no higher rights than those of his transferor ; the same is true even in the absence of such notice where the bill transferred is non-negotiable (n) or overdue (o) ; the transferee in these several cases, just as a transferee by repledge of a chattel corporeal, is bound, so long as he continues holder, to restore the bill to the pledgor on satisfac- tion of the original pledgee's claim (p). It is the duty of the pledgee of a bill to take all proper steps to obtain payment thereof, and if he fail duly to present, give notice of dishonour of, or protest the bill, not only will he forfeit the claim secured by the pledge, but he will also expose himself to a demand on the part of the pledgor for the value of the bill over and above that claim (q). On the other hand, a pledgee who takes all necessary steps, but fails to get his claim satisfied out of the proceeds of a pledged bill, has the same right as the pledgee of (k) Eeid v. Fumival, 1 Cr. & M. 538. (o) Ante, pp. 312, 313. (I) Ante, pp. 5, 7, 9, '263, 264. {p) Ante, pp. 243, 244. (m) CoUina v. Martin, 1 B. & P. 648. {q) Peacock t). PursseU, 32 L. J. C. P. (n.) Ante, pp. 3, 9. 266. THE MONEY MARKET AND THE STOCK EXCHANGE. 509 a corporeal chattel (r) which is lost without default of the latter to proceed personally against the pledgor; and, indeed, this same right continues during the currency of the bill, unless excluded by agreement of the parties express or implied. We are now in a position to understand the rights acquired by a capitalist who makes an advance on the pledge or deposit of bills by a bill broker ; in such bills as the broker has himself purchased or discounted the capitalist acquires an interest com- mensurate with tlie loan secured ; so, in regard to such current negotiable bills as are pledged or entrusted to the broker to raise money on, and are taken bond fide by the capitalist with- out notice of the pledge or trust ; otherwise if the capitalist have such notice, or if the bills be non-negotiable or overdue, for in such cases the capitalist can claim no higher interest than the broker. Thus stands the law as between pledgor and pledgee generally, where the pledge is made in consideration of a present advance ; let us next, therefore, inquire how the effect of a pledge is modified by being given to secure a past debt, and by the peculiar character of the parties to the contract. In the first place, it is clear that a pledge to secure a past debt and a present advance, where the subject of pledge includes bills of the pledgor sufficient to cover the past debt, will stand on the same footing as a pledge to secure a present advance only (s). The question is — Can a pledgee or person authorised to obtain the discotmt of a current negotiable bill transfer the same to secure a past debt due by himself to a creditor without notice of the pledgee's limited title, so as to bind the original pledgor or owner ? There appears to be no direct decision upon this point, but it would seem that on the analogy of a bill of lading {t) and from the essential nature of negotiable instruments {u) it would follow that by such transfer the original pledgor or owner would be bound. The effect of the transfer would also seem to be subject to the established usage of the money market in the (r) Ante, pp. 243, 391. (t) Leask v. Scott, L. B. 2 Q. B. D. (s) Foster v. Pearson, 1 C. M. & E. 276 ; ante, p. 302. 849. M AnU, pp. 263, 264. 510 MISCELLANEOUS. same manner as the transfer of bills in a mass by a bill broker, the legal operation of which will be gathered from the following passages : " According to the general law a bill broker who receives a bill merely for the purpose of procuring it to be dis- counted for his customer has no right to mix it with bills of his other customers and to pledge the whole mass as a security for an advance of money, for the consequence of this would in many cases be that the bill of one customer might be detained for a loss arising from the dishonoured bills of other customers. Still less has the bill broker a right to deposit bills which are re- ceived merely for the purpose of discount as a security or part security for money previously due from him {x)." Hence, if a bill broker employed by different persons to obtain the discount of their several bills mix up and pledge the same for a lump sum, the pledgee, if he have notice or reasonable ground to suspect at the time of pledge that the bills belong ^ to the pledgor's customers, cannot retain such bills as against the cus- tomers {y). These general rules have been thus explained : " In the absence of evidence as to the nature of such an employment, a bill broker must be taken to be an agent to procure the loan of money on each customer's bills separately, and, therefore, to have no right to mix bills together and pledge the mass for one entire sum. In truth, a bill broker is not a character known to the law with certain prescribed duties ; but his employment is one which depends entirely upon the course of dealing. It may differ in different parts of the country, it may have powers more or less extensive in one place than in another ; what is the nature of its powers and duties in any instance is a question of fact, and is to be determined by the usage and course of dealing in the particular place " (z). Accordingly, an indiscriminate pledge of the bills of various customers for a present lump advance by a bill broker of the City of London has been held valid under a local usage in favour of a pledgee who had notice that such (x) Haynes v. Foster, 2 C. & M. 237, (s) Foster v. Pearson, 1 C. M. & E. per Lyndhurst, C.B. 849, per Parke, B. (y) im. THE MONEY MARKET AND THE STOCK EXCHANGE. 511 bills were entrusted to the pledgor for the purpose of procuring them to be discounted (a). In the above case it was unneces- sary to decide whether a pledge to secure a past debt, but otherwise made under circumstances similar to those just mentioned, would be upheld in law; on general principles, it would seem that the owner of bills so pledged could not be bound without his actual consent or notice of the custom (b), but the grounds on which the reasonableness of a custom to pledge for a present advance are based may be deemed as applicable to a custom to pledge for an antecedent debt. " On the one hand, the custom is attended with inconvenience, because one proprietor may have to answer for the non-payment of another's bill ; but, on the other hand, the custom may give facilities to the raising of money on negotiable paper, for it may well happen that a great capitalist would advance money in this way who would not discount each particular bill " (c). As the holder of the largest amount of floating capital, it is from the banker the bill broker obtains most of the borrowed money with which he carries on his business ; he may, however, have dealings with any other capitalist, between the rights of whom and a banker capitalist there is no distinction, except where the relation of banker and customer exists so as to confer the benefit of banker's lien (d). A bill broker acts as an intermediary between the borrowing public and the less qualified capitalist ; the latter may, of course, be solely guided by his own judgment, but, as a rule, he relies on the standing and sagacity of the bill broker for the soundness of the paper upon which he advances (e). The question then arises — Are the terms upon which bills are discounted affected by any legal regulation, or are they solely determined by the condi- tions of the market ? We reply — the law neither directly nor indirectly interferes with the market, and the prices of bills {a) Ibid.; Ex parte Schofield ; Re (d) Ante,pTp. 356; 357. Frith, 40 L. T. N. S. 464. (e) Bagehot's Lombard Street, Chap. (6) Ante, pp. 491, 492. XI. (c) Foster V. Pearson, supra. 512 MLSCELLANEOtrS. are entirely governed by economic principles. Bills may be distinguished into those that are first-class and those that are other than first-class, according to the estimation entertained of their being duly honoured. Taking a first-class bill as certain to be met at maturity, it is clear that its price must first depend upon the time it has to run; less will be given for a three months' than for a seven days' bill where all the parties reside in the same place. Except as so modified by the period at which it matures, the price of first-class inland bills is entirely governed by the law of supply and demand of and for money. The Bank of England, which, unlike all other banks, never deposits money with the bill brokers, save in time of panic, when by the constitution of the money market it is compelled to do so in its own interest, lays down a minimum rate of in- terest at which it will discount (/). This minimum, or bank rate as it is called, is a good index as a rule of the state of the money market, and to this the rates of other discounters more or less conform. But there is no legal necessity in this, nor is there even any economic necessity, for though the bank as the holder of the ultimate reserve may completely control the momentary value of money, the permanent value is settled by the law of supply and demand, and the market rate is determined by the deposits with bankers and brokers as compared with good securities (g). The price of foreign bills is governed by the supply and demand of and for such bills, and of and for money. Bills being the instruments in which international indebtedness is ultimately embodied, will vary in quantity according to the balance one country owes or has to receive from the rest of the world. Where a country is general creditor, bills drawn on the rest of the world will be in excess, and will consequently fall in value ; the exchanges are then said to be in favour of the country; where a country is general debtor, bills drawn on the rest of the world will be scarce and will consequently rise in value ; (/) Bagehot's Lombard Street, Chap. {g) Ibid., Chaps. V., XII, THE MONEY MARKET AND THE STOCK EXCHANGE. 513 the exchanges are then said to be against the country, the range of the variations from the par of exchange, or the price when there is no balance on either side, being limited to the cost of exporting bullion to meet the international demand (h). Part III. THE STOCK EXCHANGE. Section I. Its Constitution. In one sense the Money Market may be said to comprehend both the discount and the investment markets; it is, perhaps, however, more correct to make the Money Market co-extensive only with the discount market ; the investment markets, or the markets in which public securities are bought and sold are styled, in English-speaking countries. Stock Exchanges, in foreign-speaking countries, Bourses. Between the London Stock Exchange and all other stock exchanges and bourses there is one striking difference : the buying and selling on the London Stock Exchange are carried on by two sets of intermediaries, viz., (1) dealers or jobbers who buy stock and shares to sell again, and make a profit by the turn of the market (i) ; (2) brokers who buy and sell stock and shares as agents for the public through the dealers, and receive remuneration by a cominission for their services ; whereas the buying and selling on all other stock exchanges and bourses are carried on through one set of intermediaries, viz., the brokers, who, when employed to buy or sell, treat directly with each other (k). In relation to the outer (A) Goschen'a Theory o£ Foreign C. P. 42. Exchanges. (i) London Stock Exchange Com- (j) See GrisBell v. Bristowe, L. E, 4 mission Report, 1878, p. 9. L L 514 MISCELLANEOUS. world dealers are principals acting on their own account; brokers are agents acting on account of some third party ; to execute a commission on the London Stock Exchange the broker addresses himself to some dealer, who, if the security sought to be dealt in be current, or, in other words, belong to a class of which there is a large amount, and for which there is an active market, will " make a price " — that is, state two prices, at one of which he binds himself to buy, and at the other of which he binds himself to sell, the securities in question — whereupon the broker is entitled to announce himself as either a buyer or a seller at the prices named, and to insist on the acceptance of the contract by the dealer for any amount within certain prescribed limits (l) ; to execute a commission on any provincial exchange or foreign bourse, a broker has to seek out some other broker who is commissioned to buy or sell the securities he is authorised to sell or buy. " The dealer is ready to take at a moment's notice, and in cases where required even to pay for at a moment's notice, almost any quantity of a current security, with the know- ledge that he can, perhaps, within the same day, or, at any rate, before the next account day, sell the same again at the margin of profit which is involved in the difference between the two prices that he named, and he acts without hesitation on this facility. The result to the pxiUic is that the buyer or seller can make his bargain at once without seeking out some one else who wants to buy what he has to sell, or who wants to part with what he wants to buy. So great is the accommodation provided by the system that purchases required on the provincial exchanges or the foreign bourses are constantly sent to London to be made on the Stock Exchange there " (m). It is of the latter alone we shall treat ; much of what we shall have to say applies to other investment markets, the transactions in which, however, are necessarily modified in all legal respects which derive their essential character from the presence or absence of a dealer. The London Stock Exchange is a voluntary association of (?) Ibid., p. 8, (m). Ibid., p. 9. THE MONEY MARKET AND THE STOCK EXCHANGE. 515 those who deal in the various securities which pass by the common name of " stocks and shares," and which we have else- where designated as "public securities." The association consists of two distinct bodies : (1) the shareholders or proprietors who own the building where business is transacted, and who are interested as members of a joint-stock undertaking; (2) the subscribers, or persons generally described as members of the Stock Exchange, or members of the house, who transact the business. To the shareholders, whose interests are represented by nine elected managers, the entrance fees and subscriptions of members accrue as substantially a rent paid for the use of the building ; the members are annually elected and re-elected by the Committee for General Purposes, a body consisting of thirty persons, who are themselves elected by and represent the mem- bers. The managers are the trustees of the property, and have exclusive control over the income and expenditure of the Stock Exchange, but no control over the business transacted by the members. They appoint all officials except the Secretary to the Committee for General Purposes and the official assignees, and they superintend all matters connected with the building and its arrangements. The Committee for General Purposes appoint their own secretary and the official assignees, and exercise a general control over the mode in which business is transacted in the house, and the conduct of its members. A shareholder, unless also a member or duly empowered clerk, has no right of entry into the building, which is strictly confined to members who are either jobbers or brokers, and to such of their clerks as obtain admission under the regulations of the Committee for General Purposes {n). To practice as broker within the city of London a license is required to be taken out, for which a yearly fee of £5 is payable to the City (o); under such license certain persons act as stockbrokers without being members of the Stock Exchange ; it is only of the latter we shall speak ; these, as we (n) IHd., pp. 5—7. Same v. Insley, L. R. 4 C. P. 177 ; (o) Ibid., pp. 7, 26 ; Scott v. Cousins ; Scott v. North, L. R. 2 C. P. 270. LL2 516 MISCELLANEOUS. have said, are either jobbers who remain in the house ready to deal with any one who comes to them, or brokers who come into the house only when they have business to transact — jobbers and brokers being allowed to interchange their mutual characters ad libitum, though not to act in the double capacity at the same time (p). Part III. — Section II. Its Rules. Like most other markets, the Stock Exchange has a peculiar set of usages and customs that govern the relations of parties contracting therein ; to what extent such usages and customs may modify the contracts entered into may be gathered from the propositions we have already laid down (q), and the more special observations we shall hereafter make (r) ; here it is necessary to speak somewhat in detail of the usages and customs themselves. These usages and customs are elaborately set forth in a code of rules dra,wn up by the Committee for General Purposes ; the rules are entered at Stationers' Hall, and can be bought by any person for one shilling, they may be classified under two heads, viz., (1) Rules relating to internal organisation, and affecting the members only, they deal with the following subjects : the com- mittee (rr. 1 — 17), admissions (s), re-elections, and re-admissions (rr. 18^35), partnerships (rr. 36 — 40), clerks (rr. 41 — 49), failures (rr. 142—165), official assignees (rr. 166—172) ; (2) Eules relating to market transactions, and affecting the public as well as the members, they deal with the following subjects': general rules applicable to Stock Exchange transactions (rr. 50 — 72), rules applicable to English and Indian stocks, &c. (rr. 73 — 82), rules applicable to securities of companies, deliverable by deed or transfer (rr. 83 — 104), rules applicable to securities to bearer {p) London Stock Exchange Com- (r) Post, pp. 521 — 524. mission Report, 1878, p. 7. (s) See Leathley v. Spyer, L. R. 5 C. (S) Ante, pp. 490—493. P. 595. THE MONEY MARKET AND THE STOCK EXCHANGE. 517 (rr. 105 — 123), special settling days and official quotation of new loans, shares and stocks (rr. 124 — 131), ordinary settling days and official quotation of prices (rr. 132 — 141). With regard to ' rules classified under the first of the above heads, we may notice "that great as are the powers of the committee over their own members, they can act in the case of non-members by consent only, and that no person not a mem- ber of the association can be compelled to submit to their jurisdiction" (t). Thus, the rules as to defaulting members are rules of a domestic forum, which have no influence on the rights of those who are not amenable as members to the jurisdiction of that body. They cannot, therefore, govern the rights of the general creditors of a defaulting member (e.g., rr. 153, 167, cannot overrule the general law of bankruptcy), and money paid in pursuance of those rules is a fraudulent preference within Section 92 of the Bankruptcy Act, 1869 (w). By becoming a member of the Stock Exchange under the Stock Exchange Rules, an honorary but not a legally enforceable agreement is entered into (x). We may here remark that the term " assets " in Rule 167 means the whole of a defaulter's available property (y); and further, that a defaulter on the Stock Exchange differs from a bankrupt under the general law, inasmuch as he obtains no discharge from his debts (z). Of the rules relating to market transactions some con- cern the mode of introducing new securities to the Stock Exchange, and regulate the conditions to which bargains in such securities are made subject; the rest are concerned with securities which have an established place on the Exchange. The large majority of contracts in the investment market are made not for immediate but for future execution (a) ; there are (i) London Stock Exchange Com- {x) Ibid. misBion Report, 1878, p. 8. (2^) Tomkins v. Saffery, svjpra. {u) Tomkins V. Saffery, L. R. 3 App. (z) Lacey v. Hill; Crowley's Claim, Cas. 203 ; Nicholson v. Gooch, 25 L. J. L. R. 18 Eq. 182. Q. B. 137 ; Mortimer v. M'Callan, 6 (a) London Stock Exchange Com- M. & W. 58 ; London Stock Exchange mission Report, 1878, p. 8. Commission Report, p. 23. 518 MISCELLANJ50US. regular days called " account or settlement " days in each month on which established securities are to be delivered and paid for ; the first step, therefore, to establish a new security is to obtain a special account-day, or day of settlement. The right of grant- ing or refusing a settlement is confided to the Committee for General Purposes, and has to be exercised in conformity with the rules which apply to that subject ; the same is true with respect to quotation in the official list (b). As soon as a new loan or company is made known to the public, dealings in its scrip or shares commence on the Stock Exchange; these dealings are made for the special account-day to be fixed by the committee, who, if they refuse a settlement, render all bargains nugatory and void (c). With the exception of shares in joint-stock banks (d), there is no legal impediment to the purchase or sale of shares in companies (e), or scrip in loans before allotment ; the consequence is that such dealings are frequently resorted to for the purpose of floating worthless companies or foreign loans of a disreputable character, and furnish unusual facilities and temptation for and to mere gambling and dishonest practices ; hence the recommendation that all dealings before allotment, whether in foreign loans or the shares of new companies, should be prohibited by law under sufficient penalties (/). Established securities quoted in the official list are of two kinds : (1) current, or those for which there is an active market, and in which the dealers make a price; (2) non-current, or those for which there is but an inactive market, and in which dealers do not make a price. In the buying and selling of the latter, brokers still apply to the dealer or jobber, who acts as a sort of middleman, without, however, offering to buy or sell until he has found some specific member who desires to sell or buy, the result being that the dealer is able to exact so dispropor- tionate a remuneration for his services that it is proposed by the (6) Ibid., p. 13. c. 110, s. 26), was repealed by the Joint- (c) Ibid. Stock Companies Act, 1856 (19 & 20 (d) 30 Vict. c. 29. Vict. c. 47, s. 107). (c) The prohibition in the Joint- (/) London Stock Exchange Corn- Stock Companies Act, 1844 (7 & 8 Vict. mission Beport, 1878, p. 19. THE MONEY MARKET AND THE STOCK EXCHANGE. 519 Royal Commissioners that a register should be kept on the Stock Exchange, in which brokers might enter particulars of the non- current securities which they are commissioned to obtain or dispose of, in order that by that means they may be able to treat with each other directly without the jobber's interven- tion (g). Securities, whether of the current or non-current class, may be bought and sold " for money '' or " for the account" (h), according as the contract provides respectively, for immediate or for future execution. A contract for money is concluded straight off ; the buyer's broker pays the dealer down, and in return receives a transfer to the name given by his clients of the subject purchased ; a contract for the account is a present binding agreement to be performed at a future time, according to the usages and customs of the market. As a rule, the broker and dealer enter a note of the agreement in their note-books, but no written contract passes between them ; the broker sends a written note of the contract to his client, which seldom mentions the name of the jobber with whom the broker has dealt. For Government stocks there is one, and for 9.II other stocks two, fixed account days in each month, on which days contracts for the account are performed, unless some fresh bargain is made by which the execution of the contract is annulled or practically deferred until the next account day. If the bargain, however, is completed on the original account-day, it is not necessarily carried out between the original parties to it, for the seller may have bought similar stock from some third person, and he in like manner from another, and so on through several hands, so that the whole series of bargains is settled by the ultimate seller delivering to the ultimate buyer (k). To enable the above arrangement to be carried out, a purchasing member is bound on the day preceding, the account-day, and (g) Ibid., p. 10. Sale and Transfer of Shares in Com- (A) The " Account " consists of three panies, p. 7. Melsheimer and Laurence's successive days, viz : (1) the carrying Stock Exchange 8, 15 — 18. over or contango day ; (2) the name (i) Ibid., p. 8. day; (3) the settling day. Digby's (i) Ibid. 520 MISCELLANEOUS. known as the '' Name Day," to pass to tlie member from whom he purchased a ticket issued either by the member himself or by some other member and duly passed to him, on which ticket appears the name furnished by the member who issued the ticket. The original vendor may then pass this ticket on to the member from whom he purchased, from whom it may pass on in succession to the ultimate vendor, by whose principal a transfer of the securities to the name given on the ticket will be executed on payment of the purchase-money (t). A ticket need not be passed on in its integral state ; it is allowed to be split, that is, any member to whom it is passed may divide the amount of stock or shares into separate parts, and apportion the same by separate new tickets amongst separate members, the member splitting a ticket being required to retain the original ticket and indorse his name on the separate tickets he issues in its place (m). The consideration expressed in the transfer is the purchase-money paid by the ultimate buyer, but the transferor or ultimate seller only receives the price he has contracted for; the differences in price in intermediate sales are received and paid by the intermediate brokers and jobbers (n); the costs of the transfer are borne by the transferee ; but each party pays his own broker's commission. Default of the buying jobber to furnish a name by the name-day empowers the selling broker to "sell out" and charge any loss to the jobber ; so, default of the seller to deliver stock he has sold within ten days entitles the buyer to "buy the stock in" against him (o); and default of a selling broker to deliver the transfer and certificates (if any) and to obtain the purchase-money within fifteen clear days from re- ceiving the name of the ultimate buyer discharges his im- mediate buyer from loss by default of the former's broker to pay the purchase-money (p). Buying-in or selling-out consists in an official broker announcing on the market that he wants, {I) GriaseU v. Bristowe, L. E. 4 C. P. (») Ibid. 45^ 46. (o) Niokalls v. Merry, L. R. 7 H. L. (ffi) Bowring V. Shepherd, L. E. 6 530.- E. 99. Q. B. 309, ip) Niokalls v. Merry, supra. THE MONEY MARKET AND THE STOCK EXCHANGE. 521 and that for what purpose, to obtain or dispose of the quantity of stock or shares in the transfer or payment for which default has been made, the original seller or buyer in default having to pay any difference between the price in the original contract and that paid or realised by the official broker (q). It is a principle upon which the Stock Exchange act throughout their rules in respect to bargains that all members as between them- selves stand in the position of principals ; that members should be entitled to look to the members with whom they deal as if they were the principals in these dealings, and as if the principal outside the house, for whom bargains are made, did not exist. Under this system the committee (who have absolute power over their own members) are enabled to enforce bargains and adjust disputes with speed and facility; but the legal relations of a client or principal outside the house who employs a broker to execute a commission within the house ought not to be affected by the above principle (r). Part III.— Section III. Legal Operativeness of Bules. Such, then, being the chief rules which govern the ordinary transactions on the Stock Exchange, we have next to inquire more particularly into their legal operation on the contracts entered into. Now, in the first place, it is clear that " neither the rules of the exchange nor the usages of the market can of them- selves make a contract between two parties. A contract there or elsewhere can be created only by the acts of the parties them- selves or their authorised agents. When once the relation of vendor and purchaser is thus established, the terms of the con- tract may be implied from or modified by the usages of the (2) London Stock Exchange Com- (r) Ibid., pp. 7, 9 ; Maxted v. Paine mission Report, pp. 8, 9. (2nd action), L. R. 6 Ex. 132. o22 MISCELLANEOUS. market." In the next place (s) " the cases of Grissell v. Bris- towe {f), and Coles v. Bristowe iu), with several other decisions in Equity establish, and it has now become settled law, that where a contract for the purchase and sale of shares has been entered into between individuals through their respective brokers, or with the intervention, as purchasers or sellers, of jobbers, members of the Stock Exchange, the lawful usages and rules of the Stock Exchange are incorporated into and become part and parcel of all such contracts, and the rights and liabilities of in- dividuals, parties to any such contracts, are determined by the operation upon the contracts of these rules and usages " {so). Hence, the substitution of liability in the contract is not Uke the assignment of a chose in action (jf); the transaction is not, as has been supposed, that the seller of shares constitutes an agent to find out and enter into a contract with some particular buyer, or, on the other hand, that the" buyer does the same as to the seller, but both parties agree to be bound by the usage of the Stock Exchange. Nor does the transaction resemble a contract by which A. sells to B., B. to. C, C. to D., and D. to E., and at the request of B. C. D., A. executes the transfer to E. ; it is rather an engagement entered into by A. on one side, and E. on the other, that through the instrumentality of certain other persons, whoever they may be, certain shares shall be sold and bought, and they undertake to complete the contract with the person, whoever he may be, who buys on the one hand and sells on the other {z). It is a fallacy to suppose that the bargain made is not fulfilled, but something else done instead. This is not so ; the jobber gives a name other than his own by virtue of and in pursuance of the original contract (a). Where A. pur- ports to buy of B. for the account, what he really does is this : A. in effect says, " I will on the account-day take of you and pay (i) Sheppari v. Murphy, Ir. E. 1 Eq. B. 327, per Kelly, C.B. 490, per Chatterton, V.C See amte, (y) IWd. p. 491. (2) Hodgkinson v. Kelly, L. E. 6 Eq. («) L. E. 3 C. P. ; 4 C. P. 496, per EomiUy, M.E. (u) L. E. 4 Ch. 3. (a) Maxted v. Paine (2nd action), (») Bcnvering v. Shepherd, L. E. 6 Q. L. E. 4 Ex. 203, per Bramwell, B. THE MONEY MARKET AND THE STOCK EXCHANGE. 523 you for certain shares, or I will find some person who will do it for me." And B., on the other hand, says, " On that day I will transfer to you certain shares and receive from you payment for them, or I will find somebody who will do it." That is the true explanation of the Stock Exchange contract (6). In this sub- stitution, however, there is an admitted departure from the ordinary incidents of a contract, such as would have attached on a contract for the sale of shares if effected outside the walls of the Stock Exchange (c); for, at Common Law, the parties to a contract could not have been changed without express provision to that effect in the original agreement. It is in virtue of the practice and custom of the Stock Exchange that the jobber has the option of saying, " I will give to you the name of a person who has authorised me to give his name instead of my own, and who will perform my contract for me ; and when that name is given to you, you shall have an opportunity of inquiring into that person's name, and you shall thereby satisfy yourself that the person I name is a person whom I may reasonably propose to you as the person who is to perform the contract which I have entered into with your broker, after which the contract which I have made will cease, and that he is a person whom it is reasonable for me to substitute for myself as contractor with you" (d). The opportunity for inquiry as to the substituted purchaser is furnished by a rule (e) which allows the vendor ten days from the passing of the ticket for completion of the contract ; during that time the vendor may give notice to the original purchaser of objection to the proposed transferee as being incompetent to relieve him of liability, and if such objec- tion be made good, the original purchaser will continue bound. In Grissell v. Bristowe the court held that where, according to the reasonable construction of the usage of the Stock Exchange, the first buyer, in availing himself of the right afforded by the (6) Bowermg v. Shepherd, L. B. 6 C. P. Q. B. 309, per Bramwell, B. ; Davis v. {d) Nickalls v. Merry, L. E. 7 H. L. Haycock, L. K. 4 Ex. 373. 547. (c) GrisaeU v. Bristowe, L. R. 4 (c) R. 99. 524 MISCELLANEOUS. usage, and, therefore, implied by and comprehended within the terms of the original contract, of substituting another buyer for himself, was bound to give the name of a person willing and able to fulfil the contract ; yet, if the seller, instead of objecting to the person so proposed, accepted such person as buyer and proceeded to transfer the shares to him, he took him for better or worse, and in so doing released the original buyer from all further liability; in other words, that there is no implied warranty of the sufficiency of the substituted buyer, or of the performance of the contract in its ulterior details by him, but simply an obligation, if he availed himself of his right of sub- stituting a buyer, to provide one to whom the seller could not reasonably object ; while, on the other hand, the right of the seller to object would be waived if, instead of availing himself of the opportunity of inquiring, and of his right to object, he at once accepts the party proposed as buyer and proceeds to transfer the shares to him (/). Accordingly, a man of straw may be objected to as transferee within the fifteen days, but if no objection be made he becomes a valid transferee {g), there being a sort of analogy in the ten days allowed for objection and the time for giving notice of dishonour of a promissory note (A). From these general propositions we may pass to the respective rights and liabilities of jobbers, brokers, and principals considered separately ; these rights and liabilities have been chiefly dis- cussed in cases where the subject of transfer was shares in companies ; accordingly, many of the succeeding remarks do not completely apply to other investment securities. Part III. — Section IV. Of Jobbers. The contract of a jobber is to accept the shares or to furnish the name of a person able and willing to accept them ; and the (/) Maxted 0. Paine, L. R. 6 Ex. (g) Ibid., L. E. i Ex. 208. 132, per Cockburn, C.J. {h) Ibid., L. E. 6 Ex. 132. THE MONEY MJtRKET AND THE STOCK EXCHANGE. 525 time limited by the rules of the Stock Exchange for the approval or rejection of the name of the ultimate purchaser applies only to the responsibility, and not to the personal capacity and willingness of the person whose name is given. If, therefore, the name given is that of one who had no legal capacity to accept the shares, though the time limited is allowed to go by without objection to him, the original contractor, the jobber, will remain liable. His engagement implies that a valid contract is to be transferred, and the rules of the Stock Exchange imply that the name of the person given as the ultimate purchaser of shares must be that of one able and willing to purchase, and they are not satisfied if the name given is that of a non-existing person, a lunatic, infant, married woman, or a person who has not given authority for the use of his name. In all such cases the jobber will be liable to in- demnify the vendor for calls on shares which the latter is compelled to pay in consequence of the disability of the tra-ns- feree named by the former, even though the transfer be without fraud on the part of the jobber (i) ; but, as between its own members, the Committee of the Stock Exchange require a purchasing broker to indemnify a selling broker who has been put upon the list of contributories by reason of the disability of the transferee, and this rule will be enforced notwithstanding two years have elapsed from the registration of the transferee under disability (Jc). In the absence of special contract, it is no part of the duty of a jobber to procure registration of the buyer he names as transferee, that duty is cast upon the purchaser (I) ; but a sale note indorsed "with registration guaran- teed," leaves a jobber liable to indemnify a vendor who is com- pelled to pay calls through non-registration of the transferee. And this rule is not confined to members of the house (m). A jobber, therefore, who, on the name-day, substitutes as (») Nickallsi). Merry, L. E. 7 H. L. pard v. Murphy Ir. R. 2 Bq. 414 • 7 Ch. 751. Taylor v. Stray, 26 L. J. C. P. 288. [h) Capper's Case, L. R 3 Ch. 458. (m) Cruse v. Paine, L. R. 4 Ch. 441, (I) Merry v. Nickalls, supra ; Shep- 6 Eq. 641. 526 MISCELLANEOUS. buyer a party to whom the seller cannot reasonably except is discharged from liability as soon as there is a transfer to and an acceptance and payment of the price by such party, and no action will thereafter lie against the jobber for specific perform- ance or for indemnity, but the sole remedy is against the trans- feree (n). An unauthorised transfer may be validated by the transferee's acquiescence, so as to render him liable for calls, and, after the lapse of such a period as a month, it may be too late for the transferee to object that he had bought on account of others, and without a guarantee that he should be registered (o). Whatever be the real nature of a transaction, the jobber's mode of conducting his business is of a uniform character; thus, where there is a " continuation of account " — an arrangement whereby a vendor for a consideration paid by the purchaser enters into two contracts with the latter, viz., (1) for purchase of same amount of stock as he has sold for next settling-day (which practically cancels the subsisting contract) ; (2) for sale of same amount on next settling-day but one — the jobber with whom the contract is made is in precisely the same position towards the broker and his customer as if there had been no previous contract, and an original contract had been made with the jobber for the ensuing account (p). So, where shares are " taken in " — an arrangement whereby one member agrees with another to take shares from him or to deliver to him a name or names for shares for the then account, upon the terms that an equal number of shares are to be returned by the member so taking shares or a name or names received for them by him on the following account-day — no difference appears in the jobber's books distinguishing it from ordinary transactions (q). Any person who consents and is not under disability may be the "nominee" or individual substituted as transferee by the (») Grrissell V. Bristowe, L. K. i 0. P.; (p) Lacey v. Hill ; Crowley's Claim, Coles V. Bristowe, L. K. 4 Oh. 3 ; Tay- L. R. 18 Eq. 182 ; Duncan v. Hill, lori). Stray. L. R. 8 Ex. 242. (o) Shepherd f. Gillespie, L.E. 3 Ch. (g) Allen v. Graves, L. K. 5 Q. B. 764, 5 Eq. 293; Hawkins v. Maltby, 478. L. K. 3 Ch. 188. THE MONEY MARKET AND THE STOCK EXCHANGE. 527 jobber ; it is not necessary that the nominee should also be purchaser (r), and a ticket endorsed " J. G. pays," means that J. G. is to be applied to by the vendor's brokers for the pur- chase-money and a name, but it does not necessarily mean that he is to be the transferee (s). Pakt III.— Section V. Of Stockbrokers. It is a fundamental rule of the Stock Exchange that its members in their dealings with each other are principals (t), and that the names of real principals outside the house are not disclosed until the name-day or completion of the contract (u). In law a stockbroker executing a commission for a third party is as much an agent as any other kind of broker ; hence, the ulti- mate contract in a Stock Exchange transaction is not between the vendor's broker and the purchaser's broker, but between the vendor and purchaser named on the ticket, and th,e broker issuing the ticket, though liable to make good untrue represen- tations, is not liable on the contract as purchaser at all (a;). Stocks and shares are not goods, wares, or merchandise within the Seventeenth Section of the Statute of Frauds, consequently no agreement relating to them need be in writing under that sec- tion (y) ; there are perhaps, however, some few undertakings in the investment market which involve interests in land within the Fourth Section of the Statute ; to bind parties contracting in the subject of such undertakings it would seem sufficient that there is a duly signed memorandum entered in the broker's book (z). A purchase or sale of shares made by one who is not a member of the Stock Exchange, and made through a {r) GriBseU v. Bristowe, L. R 3 C. P. (x) Merry v. Nickalls, L. E. 7 Ch. 135, per Byles, J. 733. (s) Allen V. Graves, supra. (.v) Heseltine v. Siggers, 18 L. J. Ex. («) Ante, p. 521. 166 ; Walker v. Bartlett, 18 C. B. 845. • {u) Maxted v. Paine (2nd actinn), (s) Thompson v. Gardiner, L. E. 1 L. E. 6Ex. 132. C.P.D..777, •528 MISCKLLANEOUS. broker who is a member of that body will be treated as made subject to the rules of the Stock Exchange (a) ; the acceptance of the transfer by the broker is the acceptance of the principal — as binding upon the principal as if he had been present and taken the transfers with his own hands — and the non-execution of the transfers by the purchaser after acceptance, being his own voluntary act, is immaterial (b). InEquityan agent is entitled to be indemnified against liability as well as against loss incurred on behalf of his principal (c) ; thus, where bank shares were bought by the plaintiffs as brokers for the defendant on the 28th' of August, 1856, for the account on the 15th September, and the bank stopped on the 3rd Septem- ber and committed an act of bankruptcy on the 8th of that month, it was held, notwithstanding notice on the 11th of September, that defendants would not accept the shares and that plaintiffs were not to pay for same ; that the plaintiffs, having subsequently accepted and paid for the shares, were entitled to recover from the defendant the purchase-money and their commission (d). So, a call paid by a vendor in pursuance of 8 & 9 Vict. c. 16, s. 6, and, according to the usage of the Stock Exchange, paid by the purchaser's broker, is recoverable by the latter from the purchaser (e) ; so, the difference which a vendor (/) or purchaser's (g) broker is compelled to pay to the purchaser or vendor's broker by reason of default in delivery or payment on the part of his principal is recoverable from such principal, and, notwithstanding Section 151 of the Companies Act (h), a purchaser is bound to indemnify a broker who pays for and takes a transfer of shares in a company after commence- ment of the winding-up (i). By the usage of the London Stock (as) Nickalls v. Merry, L. K. 7 H. L. 273. 530. (/) Bayliffe v. Butterworth, 17 L. J. (i) Sheppard v. Murphy, Ir. K. 2 Ex. 78. Eq. 569 ; Bowering v. Shepherd, L. R. {g) PoUock v. Stables, 17 L. J. Q. B. 6Q. B.309. .352. (c) Lacey v. Hill ; Crowley's Claim, (7i) 25 & 26 Vict. c. 89. L. E. 18 Eq. 182. (i) Chapnjan v. Shepherd, L. E. 2 (d) Taylor v. Stray, 26 L.J. C. P. C. P. 228 ; Whitehead v. Izod, L. K. 2 185. C. P. 228 ; Emmeraon's Case, L. E. (e) Bayley v. Wilkins, 18 h. J. 0. P. 1 Ch. 433. THE MONEY MARKET AND THE STOCK EXCHANGE. 529 Exchange, stockbrokers who with their own money have pur- chased stock for a principal are justified on the latter's death, bankruptcy, or insolvency in immediately selling out (Ic) ; and may claim against their principal's estate the balance due on the account subject to deduction for any loss that may have accrued before the next settling day ; a principal is insolvent within this rule when he is unable to pay his debts in the ordi- nary course of business {I). A principal is liable to pay differ- ences to his broker which have accrued on an account day when he directs a continuation till the next account day, but he is not liable to pay the difference which arises when the broker pre- maturely fails {m). Vendor's brokers who signed the sold note as principals were held liable to purchaser for purchase-money and interest of debentures transferred under an instrument forged by one of three co-trustees and ordered to be retransferred to the trustees {n) ; on the other hand, the broker of a vendor of forged scrip certificates was allowed to recover from his principal the sum' paid by the purchasers, but not the sum which the committee of the Stock Exchange by subsequent resolution put upon the scrip and called upon the broker to pay to the purchasers (o). It seems doubtful whether a broker has an implied authority to continue the account without his principal's express orders (p) ; under such orders a broker cannot be authorised to fill in a deed executed by a vendor in blank except by deed ; if not filled in such blank deed is void {q), and a deed of transfer executed in blank as to the name of the purchaser is void, and cannot be subsequently filled in with the name of a sub-purchaser (r). A broker is not authorised in selling stock standing in the joint (k) LaceyiJ.Hill; Sorimgeour'a Claim, 561, 562. L. E. 8 Ch. 921 ; Lacey o. Hill ; (?) Hawkins v. Maltby, L. R. 3 Ch. CroBsley's Claim, L. R. 18 Eq. 182. 194 ; Tayler v. Grt. Indian Peninsular (f) Ibid. Ely. Co., 4 De G. & J. 559. (m) Duncan v. Hill, L. R. 8 Ex. 242. (»•) Hibblewhite v. M'Morine, 6 M. (n) Roy. Exch. Ass. Co. v. Moore, & W. 200. The deed is void as such, 11 W. E. 592. but blank transfers avail where a sealed (o) Westropp v. Solomon, 19 L. J. instrument is unnecessary. See I. C. P. 1. Lindley's Law of Partnership, 4th ed., (p) Sheppard v. Murphy, Ir. R. 2 Eq. 705—709. M M 530 MISCELLANEOUS. names of trustees on an order of one trustee who undertakes to procure but fails in procuring the concurrence of his co-trus- tees (s), nor can a broker recover from a company the price of its own shares bought by its order, as such order is ultra vires {t). The position of a broker is not that of a banker but of an agent into whose hands money is put to be applied in a par- ticular way, and money paid to him can therefore be followed by the customer ; a fortwi if the money be trust money of which trust the broker had notice (u). Accordingly, where a stockbroker had notice that his employer was only an agent, it was decided — (1) that, though the agent had authority to receive the purchase-money, payment by the stockbroker giving credit in account between them was no discharge as against the prin- cipal ; (2) that the rules of the Stock Exchange apply only to sales on the Exchange and not to subsequent transactions ; (3) that the rule that the stockbroker could only recognise his principal, and obey his directions as to the disposal of the proceeds of a sale could not be upheld" as a reasonable custom (x). Part III. — Section VI. Of Prvncipals Outside the House. A purchaser of shares has a right, before he parts with his money, to have the shares transferred, and the vendor has a right, before he parts with the shares, to have the money paid (y), and the instrument of transfer executed by the purchaser, and he may insist on registration being made in the name of the new buyer or his nominee, as part of the transaction (z), or sub- sequently bring an action to have the contract specifically (s) Leyton v. Sneyd, 2 Moo. 583. (») Pearson v. Scott, L. K. 9 Ch. D. (t) In re London, Hamburg & Con- 1 98. tinental Exchange Bank ; Zalneia's {y) Maxted v. Paine (2nd action). Claim, L. E. 5 Ch. 444. L. R. 6 Ex. 132. (m) Ex parte Coolce ; In re Strachan, {z} Grissell v. Bristowe, L. E 4 C P. L. R. 4 Ch. D. 123. 50. THE MONEY MARKET AND THE STOCK EXCHANGE. 53 1 performed (a), laying as consideration the money paid by the ultimate purchaser, not that for which he himself sold to the jobber (b). Where an order to purchase for the account is given and executed, the purchaser is liable to become the transferee, though the company fail before the account day (c) ; and it is the duty of the vendor to execute the transfer after the com- mencement of the winding up of a company registered under the Companies' Act (d), and that, though the sanction of the liquidator be not procured, for under section 131 the transfer is not rendered illegal, but only void (e). By the execution of a transfer to the buyer named by the jobber, a vendor puts it out of his power to give the jobber the consideration which formed the basis of the contract ; consequently, the purchaser can claim no indemnity from the jobber, unless, indeed, the buyer have no capacity to contract, for a contract of indemnity cannot be enforced against a party whose position has been unnecessarily deteriorated by acts or laches of the party seeking to enforce the same (/). In considering the question of indemnity, it is necessary to distinguish between the rights of a vendor as against a purchaser and as against the company: — "Whether A. shall remain on the list of shareholders or B. be substituted for him is a question between A. and the company — that is, between him and all the other shareholders of the company — but the question whether B. shall indemnify A. against the consequences of A. remaining a shareholder is a question solely between A. and B. with which the company — that is, the rest of the shareholders — have nothing to do " (g). Where the articles of association require a transfer to be executed by both parties, the Court has no power under sections 'do, 98, of the Companies' Act to rectify the register by removing the transferor's name in (a) Musgrave and Harb's Case, L. R. {d) 25 & 26 Vict. c. 89. 5 Eq. 193. (c) Biderman v. Stone, L. K. 2 C. P. (J) Hawkins v. Maltby, L. E. 3 Ch. 504. 188. (/) Grissell v. Bristowe, L. E. 4 0. (c) Bowring v. Shepherd, L. R. 6 Q. P. 51. B. 309 ; Paine v. Hutchinson, L. E. 3 {g) Hodgkinaon v. Kelly, L. R. 6 Eq. Ch. 388 ; 3 Eq. 257. 496, per Romilly, M.R. M M 2 532 MISCELLANEOUS. the absence of an execution of the transfer by the transferee {h). The mere fact that directors have a discretionary power of refusing registration will not invalidate a transfer executed before, but not left for registration until after the commence- ment of the winding up of a company (i) ; there is a clear distinction between a sale effected after a winding up order is made, and a sale where directors have power to refuse a transfer but do not exercise it (fc). There seems to be some doubt whether a purchaser of shares can avoid liability to indemnify a vendor by taking the purchase in some third person's name, to whom the transfer is made. It is settled that if the transferee be an infant, the vendor is entitled to indemnity from the real owner (I) ; the same right would seem to obtain wherever the transferee had no capacity to contract {m). But whether a similar rale should apply where the transferee is under no disability, is open to dispute. On the one hand, a court of law has decided that a vendor cannot recover indemnity from a purchaser who has had the shares transferred by deed to a nominee, from whom the purchaser received no consideration, but whose name he was authorised to use {n) ; on the other hand, a court of equity has held in a similar case (where the form of transfer does not appear) that the vendor is a trustee for the purchaser, and that the latter, as cestui que trust, is bound to indemnify the former (o). On, the whole, it is, perhaps, more correct to regard the relation created by a Stock Exchange transaction as that of vendor and pur- chaser simply and absolutely {p), not that of trustee and cestui que trust, and therefore, in the absence of actual fraud, to allow the vendor no indemnity, except as against the actual transferee.^ (A) Musgrave and Hart's Case, L. E. (m) Ante, pp. 525, 526. 5 Eq. 193. (n) Tomngton v. Lowe, L. E. 4 C. (i) Evans v. Wood, L. E. 5 Eq. 9. P. 26. (h) Paine v. Hutchinson, L. E. 3 Ch. (o) Castellan v. Hobson, L. E. 10 Ea. 388 ; 3 Eq. 257. 47. (0 Brown v. Black, L. E. 8 Ch. G39; {p) Sheppard v. Murphv, Ir E 544- 15 Eq. 363. ante, p. 524. THE MONEY MARKET AND THE STOCK EXCHANGE. 533 In the case of the British Government Stocks the right to accruing dividends is now expressly prescribed by statute (g), so that no question can be raised as to whether a transferee is or is not entitled. With regard to shares in companies, it has been recently decided that where nothing is said about the dividend, the same passes to the purchaser, though the purchase is not actually completed until after the dividend is declared. Thus, where sales of shares were made on the 1st and 21st August for the account on the 29th August, and on 8th August notice was issued of the half-yearly meeting to be held on 2Stli August, on which day the dividend for the half year ending 30th June (on which day the vendor was registered owner) was declared, the dividend was held to pass to the purchaser (r). Part III. — Section VII. Speculation and Time Bargains. According to the usage and custom of the Stock Exchange, a person who buys or sells for the account (s) need not himself either actually receive or actually transfer the subject sold. Subject to the conditions we have previously mentioned (t), he may substitute some third person as buyer or seller in his place. A., for instance, may order his broker on one day to buy £1000 consols, and on another day to sell the same for the ensuing account ; in such case A.'s contract to buy from B. can be ful- filled by A.'s contract to sell to 0., and vice versa, it being allowable for A. to name C. as buyer from B. By means of the above substitution, which may take place either with or without the intervention of jobbers, one contract may be practically made to cancel another, so as to entail no other right or liability (besides the broker's commission) than that of receiving or pay- (S) Ante, p. 499. 283. ()•) Black V. Homersham, L. K. 4 Ex. (s) Ante, p. 518. D. 24 ; De Genclre v. Kent, L. R. 4 Eq. (J) Ante, p. 519, ct scq. 534! MISCELLANEOUS. ing the difference between the two prices at which the party contracting, respectively, bought and sold. Between two account days the prices of any given security may vary very considerably; that they will vary to some extent is a necessary result of the continuous changes to which the market is subject ; hence the opportunity and temptation for speculating on the Stock Ex- change. The object of the speculator is to buy cheaply and sell dearly and to pocket the difference, without having the subject bought and sold ever actually on his hands. In this respect, and also in the fact that his labour confers no intrinsic value on the commodity dealt in, he differs from the ordinary trader. It sometimes happens that the speculator is unable to balance one transaction against another — that, having bought or sold stock for the account, he finds it out of his power to sell or buy a cor- responding amount of stock for the same account. Under these circumstances he may usually have the contract carried over to the next account day on payment of a certain consideration called "contango," if he be a buyer, and "backwardation," if he be a seller. A speculator who buys stock for an expected rise, so that he may subsequently re-sell at a higher price, is termed a " Bull ;" a speculator who sells stock for an expected fall, so that he may subsequently re-buy at a lower price, is termed a " Bear." By properly manipulated bull and bear transactions a factitious value may be temporarily put upon any given security. A bull transaction on a large scale, by creating an excessive demand, raises, and a similar bear transaction, by creating an excessive supply, depresses the price of any given investment ; but such fluctuation in an established security would not profit the body of bulls or bears, inasmuch as the equation of supply and demand would be readjusted on the account day without any change being effected as regards them. It is otherwise where speculation takes place in a security not yet allotted, for by a bull operation the price may be indefinitely raised above the fixed rate charged on allotment, and the bulls being the allottees and having tempted the public to invest by the apparent pre- mium, will be able to secure that premium for themselves ; THE MONEY MARKET AND THE STOCK EXCHANGE. 535 conversely, a bear operation may be resorted to to ruin a new undertaking, for by excessive sales the price of the shares may be so depressed below the fixed rate charged on allotment, that no one will apply to become an allottee (u). Stock Exchange speculation, such as we have now described, is, in fact, gambling. Let us, therefore, trace briefly the course the law has pursued in regard to this matter. By the 7 Geo. II. c. 2 (the Stockjobbing Act), contracts for the payment of differ- ences or in the nature of wagers relating to the price of the public stocks were prohibited under penalties and rendered null and void. This enactment, which was repealed by the 23 & 24 Vict. c. 28, did not extend to any shares or stocks, home or foreign, other than the British Government Securities (x). By 8 & 9 Vict. c. 109, s. 18, " all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void, and no suit shall be brought or maintained in any court of law or equity, for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made." Under this provision the prohibited contracts are rendered void but not illegal. A contract, therefore, constituting a bet cannot be enforced, but a contract collateral thereto is not affected (y) ; hence, A. cannot recover from B. the amount of a wager between them, but A. can recover from B. the amount of a wager lost by B. and paid by A. at B.'s request to the winner (z). Again, money actually paid by the loser on a lost bet cannot be recovered, nor money deposited in the hands of a stakeholder to abide the event of a bet and actually paid over by him to the winner, unless, indeed, the loser before such payment give notice to the stakeholder not to part with the money, in which case (m) London Stock Exchange Com- (z) Oldham v. Eamsden, 44 L. J. missioners' Eeport, 1878, pp. 14—18. C. P. 309 ; Bubb v. Yelverton, 24 L. T. (ic) Williams v. Trye, 23 L. J. Ch. 822 ; Higginson v. Simpson, L. R. 2 0. 860 ; Nicholson o. Gooch, 25 L. J. Q. P. D. 76 ; Beeston v. Beeston, L. R. 1 B. 137. Ex. D. 13 ; Ex parte Pyke ; In re Lister, (y) Thacker v. Hardy, 27 W. R. 158. L. R. 8 Ch. D. 754. 536 MISCELLANEOUS. the stakeholder will be liable to refund the deposit (a). Apply- ing these principles to Stock Exchange transactions, the following important results have been deduced as to the liability of a principal to indemnify his broker for money paid as differences ; where a principal employs a broker on an agreement — (1) That the broker shall buy and sell stock, but in no case claim more than differences — the transaction is within the 8 & 9 Vict., and the broker is debarred from recovering either what he has paid as differences or his commission ; (2) That the broker should make time bai-gains with the jobbers — the transaction between the broker and jobber is within the Act, and consequently as the broker has -incurred no legal liability, he can make no claim against his principal ; (3) That the broker should make contracts with jobbers, and that the principal should never be called upon to pay or receive more than differences, if the broker succeeded — the transaction is not within the Act, and the principal is liable on an implied as merely collateral contract, to indemnify the broker and pay his commission (6). Had the contract in this last instance been directly between the jobber and outside principal it would have stood on the same footing as that in (l),and could not be enforced by either party; but bargains between a jobber and broker are real bargains. A time bargain, merely because it is one, is not invalid ; but a time bargain so called (as in (2) supra), where the agreement is that differences only shall be payable, is as betvsreen the imme- diate parties invalid (c). Except as above stated, a broker is entitled to recover indemnity and commission from his principal (c?) ; and, on the other hand, a principal cannot bring an action for the specific performance of a contract to deliver stock ; he can only recover as damages the difference between the price he agreed to pay (a) Hampden v. Walsh, L. K. 1 Q. B. (c) Grrizewood v. Blane, 11 C. B. 538. D. 189 ; Batson v. Newman, L. R. 1 C. {d) Knight v. Cambers, 24 L. J. C 1'. D. ays ; Diggle v. Higgs, L. R. 2 Ex. P. 121 ; Knight v. Fitch, 24 L. J. C. P. D. 422. 122. (6) Thacker v. Hardy, 27 W. R. 158. THE MONEY MAEKET AND THE STOCK EXCHANGE. 537 and the current price of the stock on the day the contract was broken (e). Besides a purchase and resale, there is another mode of specu- lation by so-called " Options," which are either a " Put and Call," or a " Put " or a " Call." A " Put and Call " is an option to take or deliver stock at a fixed price at some future day, for which money is paid on the day the bargain is made. " A Put " is an option of delivering stock at a certain time, the price and date being fixed at the time the option money is given. " A Call " is an option of claiming stock at a certain time, the price and date being fixed at the time the option money is given. Option money is paid by the principal to his broker at the time the transaction is effected. If the price be the same at the expiration of the option-time as the price fixed, the person giving the money is allowed to declare whether he buys, sells, or does nothing (/). Puts, calls, and options were within the 7 Geo. II. c. 8 ; whether they are covered by the provisions of the present Betting Act seems to be a question that has not yet received judicial investigation {g). (e) Cuddee v. Rutter, 5 Vin. Ab. 538, {y) London Stock Exchange Commis- Pl. 21. doners' Report, 1878, pp. 20—22. (/) Fenn on the Funds. APPENDIX. APPENDIX (A). the crossed cheques act, 1876. 39 & 40 Vict. c. 81. An Act for Amending the Law relating to Crossed Cheques. a, d. 1S76. [15t/t August, 1876.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as The Crossed Cheques Act, 1876. short title. 2. The Acts described in the schedule to this Act are hereby Repeal of repealed, but this repeal shall not affect any right, interest, or ■'^9**,™, liability acquired or accrued before the passing of this Act. so e u e. 3. In this Act — " Cheque " means a draft or order on a banker payable to bearer interpreta- or to order on demand, and includes a warrant for payment *'°"- of dividend on stock sent by post by the governor and com- pany of the Bank of England or of Ireland, under the authority of any Act of Parliament for the time being in force : " Banker " includes persons or a corporation or company acting as bankers. 4. Where a cheque bears across its face an addition of the words General and " and company," or any abbreviation thereof, between two parallel orosstoss transverse lines, or of two parallel transverse lines simply, and either with or without the words " not negotiable," that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally. Where a cheque bears across its face an addition of the name of a banker, either with or without the words " not negotirible," that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed specially, and to be crossed to that banker. 540 APPENDIX. Crossing after issue. Crossing material X^art of cheque. Payment to banlcer only. Cheque crossed spe- cially more than onee not to be paid. Protection of banker and drawer where cheque specially. Banker paying cheque con- trary to provisions of Act to be liable to lawful owner. Relief of banker from responsi- bility in some cases. Title of holder of cheque crossed specially. 5. Where a cheque is uncrossed, a lawful holder may cross it generally or specially. Where a cheque is crossed generally, a lawful holder may cross it specially. Wliere a cheque is crossed generally or specially, a lawful holder may add the words " not negotiable." Where a cheque is crossed specially, the banker to whom it is crossed may again cross it specially to another banker, his agent for collection. 6. A crossing authorised by this Act shall be deemed a material part of the cheque, and it shall not be lawful for any person to obliterate or, except as authorised by this Act, to add to or alter the crossing. 7. Where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to a banker. Where a cheque is crossed specially, the banker on whom it is drawn shall not pay it otherwise than to the banker to whom it is crossed, or to his agent for collection. 8. Where a cheque is crossed specially to more than one banker, except when crossed to an agent for the purpose of collection, the banker on whom it is drawn shall refuse payment thereof. 9. Where the banker on whom a crossed cheque is drawn has in good faith and without negligence paid such cheque, if crossed generally to a banker, and if crossed specially to the banker to whom it is crossed, or his agent for collection being a banker, the banker paying the cheque and (in case such cheque has come to the hands of the payee) the drawer thereof shall respectively be entitled to the same rights, and be placed in the same position in all respects, as they would respectively have been entitled to and have been placed in if the amount of the cheque had been paid to and received by the true owner thereof. 10. Any banker paying a cheque crossed generally otherwise than to a banker, or a cheque crossed specially otherwise than to the banker- to whom the same shall be crossed, or his agent for collection, being a banker, shall be liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid. 11. Where a cheque is presented for payment, which does not at the time of presentation appear to be crossed, or to have had a cross- ing which has been obliterated, or to have been added to or altered otherwise than as authorised by this Act, a banker paying the cheque, in good faith and without negligence, shall not be responsible or iucur any liability, nor shall the payment be questioned, by reason of the cheque having been crossed, or of the crossing having been obliterated, or having been added to or altered otherwise than as authorised by this Act, and of payment being made otherwise than to a banker or the banker to whom the cheque is or was crossed, or to his agent for collection being a banker (as the case may be). 12. A person taking a cheque crossed generally or specially, bear- ing in either case the words " not negotiable," shall not have and shall not be capable of giving a better title to the cheque than that which the person from whom he took it had. THE CROSSED CHEQUES ACT, 187G. 541 But a banker who has in good faith and without negligence received payment for a customer of a cheque crossed generally or specially to himself shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment. SCHEDULE. ACTS REPEALED. 19 & 20 Vict. c. 25 An Act to amend the law relating to drafts on bankers. 21 & 22 Vict. c. 79 An Act to amend the law relating to cheques or drafts on bankers. APPENDIX (B). LOCKE king's act,* 18-54. 17 & 18 Vict. c. 113. An Act to Amend the Laio relating to the AdwAnistration of the Estates of Deceased Persons. [nth August, 1854.] Whereas it is expedient that the law whereunder the real and personal assets of deceased persons are administered should be amended : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. When any person shall, after the thirty-first day of December, Heir or one thousand eight hundred and fifty-four, die seised of or entitled devisee of to any estate or interest in any land or other hereditaments which '■"'Ji^'^'l:*'? shall at the time of his death be charged with the payment of payment of any sum or sums of money by way of mortgage, and such person mortgage shall not, by his will or deed or other document, have signified any sona°'assct.s. contrary or other intention, the heir or devisee to whom such land or hereditaments shall descend or be devised shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate or any other real estate of such person, but the land or here- ditaments so charged shall, as between the different persons claiming through or under the deceased person, be primarily liable to the payment of all mortgage debts with which the same shall be charged, every part thereof, according to its value, bearing a proportionate * So called from its author, J. Locke King, Esq. 542 APPENDIX. part of the mortgage debts charged on the whole thereof: Provided always, that nothing herein contained shall affect or diminish any right of the mortgagee on such lauds or hereditaments to obtain full Not to payment or satisfaction of his mortgage debt either out of the affect rights personal estate of the person so dying as aforesaid or otherwise : under any Provided also, that nothing herein contained shall affect the rights of any person claiming under or by virtue of any will, deed, or document ah-eady made or to be made before the first day of January, one thousimd eight hundred and fifty-five. 2. This Act shall not extend to Scotland. willj (fee before 1st Jan., 1855. Extent of Act. LOCKE king's amendment ACT, 1867. 30 & 31 Vict. c. 69. An Act to explain the operation of an Act passed m the saventeenth and eighteenth years of her present Majesty, chapter one himdred and thirteen, intituled an Act to Amend the Law relating to the Adminis- tration of the Estates of Deceased Persons. [25th Ju/y, 1867.]' Whereas by an Act passed in the seventeenth and eighteenth years of her present Majesty it is enacted, among other things, when any person shall, after the thirty-first of December one thousand eight hundred and fifty-four, die seised of or entitled to any estate or interest in any land 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, the heir or devisee to whom such land or hereditaments shall descend or be devised shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate or any other real estate of such person, but the land or hereditaments so charged shall, as between the different persons claiming through or under the deceased person, be primarily liable to the payment of all mort- gage debts with which the same shall be charged, every part thereof, according to its value, bearing a proportionate part of the mortgage debts charged on the whole thereof : And whereas doubts may exist upon the constmotion of the said Act, and it is expedient that such doubts should for the future he removed ; Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : In con- 1. In the construction of the will of any person who may die Ss^lene- ***®'' .*^® thirty-first day of December, one thousand eight hundred ral direction and sixty-seven, a general direction that the debts or that all the for payment debts of the testator shall be paid out of his personal estate shall not LOCKE king's amendment ACTS, 1867, 1877. 543 be deemed to be a declaration of an intention contrary to or other °' ''^'^ts «"* than the rule established by the said Act, unless such contrary or aitriotta other intention shall be further declared by words exjjressly or by include necessary implication referring to all or some of the testator's debts "mortgage or debt charged by way of mortgage on any part of his real estate. leL fuch"' 2. In the construction of the said Act and of this Act, the word intention " mortgage " shall be deemed to extend to any lien for unpaid Sm ^ purchase-money upon any lands or hereditaments purchased by a interprets. testator. tion of word 3. This Act shall not extend to Scotland. "mortgage.' Extent of Act. L0CK13 king's amendment ACT, 1877. 40 & 41 Vict. c. 34. An Act to amend the Acts seventeenth and eighteenth Victoria, chapter one hundred and thirteen, and thirtieth and thirty-first Victoria, chapter sixty^ioie. [2?irf August, 1877.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. The Acts mentioned in the schedule hereto shall, as to any Application testator or intestate dying after the thirty-first December, one "* Acts in thousand eight hundred and seventy-seven, be held to extend to a ^°'^'^'*"'''- testator or intestate dying seised or possessed of or entitled to any land or other hereditaments of whatever tenure which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, or any other equitable charge, in- cluding any lien for unpaid purchase-money; and the devisee or legatee or heir shall not be entitled to have such sum or sums dis- charged or satisfied out of any other estate of the testator or intestate unless (in the case of a testator) he shall within the meaning of the said Acts have signified a contrary intention ; and such contrary in- tention shall not be deemed to be signified by a charge of or direc- tion for payment of debts upon or out of residuai-y real and personal estate or residuary real estate. 2. This Act shall not extend to Scotland. Act not to extend to Scotland. Schedule. 17 & 18 Vict. c. 113 - - An Act to amend the law relating to the administration of the estates of deceased persons. 30 & 31 Vict. c. 69 - An Act to explain the operation of the Act 17 & 18 Vict. c. 113. 544 APPENDIX. APPENDIX (C). the bills of sale act, 1878. 41 & 42 Vict. c. 31. A. D. 1878. ^7j j^ct to Consolidate and amend the Law for preventing Frauds upon Creditors by secret Bills of Sale of Personal Chattels. [22nd July, 1878.] Whereas it is expedient to consolidate and amend the law relating to bills of sale of personal chattels : . Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited for all purposes as The Bills of Sale Act, 1878. 2. This Act shall come into operation on the first day of January, one thousand eight hundred and seventy-nine, which day is in this Act referred to as the commencement of this Act. 3. This Act shall apply to every bill of sale executed on or after the first day of January, one thousand eight hundred and seventy - nine (whether the same be absolute, or subject or not subject to any trust), whereby the holder or grantee has power, either with or with- out notice, and either immediately or at any future time, to seize or take possession of any personal chattels comprised in or made subject to such bill of sale. 4. In this Act the following words and expressions shall have the meanings in this section assigned to them respectively, unless there be something in the subject or context repugnant to such construc- tion ; (that is to say,) The expression " bill of sale " shall include bills of sale, assign- ments, transfers, declarations of trust without transfer, in- ventories of goods with receipt thereto attached, or receipts for purchase-moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities, or licenses to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shaU be conferred, but shall not include the following documents ; that is to say, assign- ments for the benefit of the creditors of the person making or giving the same, marriage settlements, transfers or assignments of any ship or vessel or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, warehouse Keepers' Short title. Commence- ment. Application of Act. Interpreta- tion of terms. THE BILLS OF SALE ACT, 1S78. 545 certificates, warrants, or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by indorse- ment or by delivery, the possessor of such document to transfer or receive goods thereby represented : The expression " personal chattels " shall mean goods, furniture, and other articles ca])able of complete transfer by delivery, and (when separately assigned or chai-ged) fixtures and growing crops, but shall not include chattel interests in real estates, nor fixtures (except trade machinery as hereinafter defined), when assigned together with a freehold or lease- hold interest in any land or buildiug to which they are afiixed, nor growing crops when assigned together with any interest in the land on which tliey grow, nor shares or interest in the stock, funds, or securities of any govern- ment, or in the cai)ital or property of incorporated or joint stock companies, nor choses in action, nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement or of the custom of the country ought not to be removed from any farm where the same axe at the time of making or giving of such bill of sale : Personal chattels shall be deemed to be in the ''apparent pos- session " of the person making or giving a bill of sale, so long as they remain or are in or upon any house, mill, warehouse, building, works, yard, land, or other premises occupie further deposit or pledge is or are a factor or factors, agent or agents ; but was possess- then and in that case such person or persons, body or bodies politic or ed ''y such corporate, shall acquire no further or other right, title, or interest in tUne'of*such or upon or to the said goods, wares, or merchandise, or any such pledge. document as aforesaid, for the delivery thereof, than was possessed or could or might have been enforced by the said factor or factors, agent or agents, at the time of such deposit or pledge as a security as last aforesaid ; but such person or persons, body or bodies politic or corporate, shall and may acquire, possess, and enforce such right, title, or interest as was possessed and might have been enforced by such factor or factors, agent or agents, at the time of such deposit or pledge as aforesaid ; any rule or law, usage or custom to the contrary notwithstanding. VI. Provided always, and be it enacted. That nothing herein con- BigM of the tained shall be deemed, construed, or taken to deprive or prevent tS'foilow'his the true owner or owners, or proprietor or proprietors, of such goods, goods while wares, or merchandise, from demanding and recovering the same in the hands from his, her, or their factor or factors, agent or agents, before the or oFmI™ same shall have been so sold, deposited, or pledged, or from the assignee, in assignee or assignees of such factor or factors, agent or agents, in the ™t°y'^n"to event of his, her, or their bankruptcy ; nor to prevent such owner recoverthem or owners, proprietor or proprietors, from demanding or recovering ^°'°- * *""* of and from any person or persons, body or bodies politic or corpo- pa^g'hS™ rate, the price or sum agreed to be paid for the purchase of such advances goods, wares, or merchandise, subject to any right of set-off on the u^^^g^ part of such person or persons, body or bodies politic or corporate, against such factor or factors, agent or agents ; not to prevent such owner or owners, proprietor or proprietors, from demanding or re- covering of and from such person or persons, body or bodies politic or corporate, such goods, wares, or merchandise so deposited or pledged, upon repayment of the money, or on restoration of the negotiable instrument or instruments so advanced or given on the 556 APPENDIX. secuiity of such goods, wares, or merchandise as aforesaid, by such person or persons, body or bodies politic or corporate, to such factor or factors, agent or agents ; and upon payment of such further sum of money, or on restoration of sxich other negotiable instrument or instruments (if any) as may have been advanced or given by such factor or factors, agent or agents, to such owner or owners, pro- prietor or proprietors, or on payment of a sum of money equal to In case of ^{jg amount of such instrument or instruments : nor to prevent the bankruptcy . , . . ' j. p • c of factor, the said owner or owners, proprietor or proprietors, from recovering of owner of and from such person or persons, body or bodies politic or corporate piedged'and ''"^7 balance or sum of money remaining in his, her, or their hands, redeemed- as the produce of the sale of such goods, wares, or merchandise, after shall be held jeducting thereout the amount of the money or negotiable instru- eharged;)ra ment or instruments so advanced or given upon the security thereof (K,i/.) the as aforesaid : Provided always, that in case of the bankruptcy of any from him to such factor or agent, the owner or owners, proprietor or proprietors bankrupt, of the goods, wares, and merchandise so pledged and redeemed as aforesaid, shall be held to have discharged ^ro tanto the debt due by him, her, or them to the estate of such bankrupt. Agents [ *VII. And whereas it is expedient to prevent the improper fraudulently deposit or pledge of goods, wares, or merchandise, or the documents goods of relating to such goods, wares, or merchandise, intrusted or consigned their princi- as aforesaid to factors or agents ; be it therefore enacted, That if guilty (rfa ^''y ^"'^'' factor or agent, at any time from and after the said first misde- ' day of October one thousand Bight hundred and twenty-six, shall meaner; deposit or pledge any goods, wares, or merchandise, intrusted or consigned as aforesaid to his or her care or management, or any of the said several documents so possessed or intrusted as aforesaid, with any person or persons, body or bodies politic or corporate, as a security for any money or negotiable instrument or instruments borrowed or received by such factor or agent, and shall apply or dispose thereof to his or her own use, in violation of good faith, and with intent to defraud the owner or owners of any such goods, wares, or merchandise, every person so offending, in any part of the United Kingdom, shall be deemed and taken to be guilty of a misdemeanor, and being convicted thereof according to law, shall be sentenced to may be transportation for any term not exceeding fourteen years, or to transported receive such other punishment as may bylaw be inilicted on persons tag fourteen guilty of a misdemeanor, and as the Court before whom such offender years, &c. may be tried and convicted shall adjudge.] Not to ex- [VIII. Provided always, and be it further enacted, That nothing tend tocaaes herein contained shall extend or be construed to extend to subject agent ha-. ^T'^J person or persons to prosecution, for having deposited or pledgd not made any goods, wares, or merchandise so intrusted or consigned to him, security to ^^^> °^ them, provided the same shall not be made a security for or any sum subject to the payment of any greater sum or sums of money than beyond the at the time of such deposit or pledge was iustly due and owing to extent of his , *^. i-i J_^ • -.i . . ° ^ own Uen. such person or persons from his, her, or their principal or principals ; * S. 7—10 are repealed as to England (7 & 8 Geo. IV. c. 27), and Ireland (9 Geo. IV. o. 63), and are now replaced by 24 & 25 Vict. o. 96, ss. 75 -79, 8-5, 86. THE FACTORS ACTS. 557 Provided nevertheless, that the acceptance of bills of exchange by Acceptances such person or persons drawn by or on account of such principal or agent not to principals, shall not be considered as constituting any part of such create a lieu debt so due and owing from such principal or principals within the ^"'^a"/''" true intent and meaning of this Act, so as to excuse the consequence p^ldgerun- of such a deposit or pledge, unless such bills shall be paid when the i^ss the Mils same shall respectively become due.] when'thie. [IX. Provided also, and bo it further enacted. That the penalty Act not to by this Act annexed to the commission of any offence intended to extend to be guarded against by this Act, shall not extend or be construed to ^euigmivy' extend to any partner or partners or other person or persons of or to the belonging to any partnership, society, or firm, except only such "ffence. partner or partners, person or persons, as shall be accessory or privy to the commission of such offence ; anything herein contained to the contrary in anywise notwithstanding.] [X. Provided also, and be it further enacted, That nothing in this Act not to Act contained, nor any proceeding, conviction, or judgment to be had J.|^e^y"'[ or taken thereupon, shall hinder, prevent, lessen, or impeach any law or remedy at law or in equity, which any party or j)arties aggrieved by ^S*'.'*/., any offence against this Act might or would have had or have been ^,.ty ag- entitled to against any such offender if this Act had not been made, grieved may nor any proceeding, conviction, or judgment had been had or taken toadotrt^"^ thereupon ; but nevertheless, the conviction of any offender against this Act shall not be received in evidence in any action at law or suit in equity against such offender : And further, that no person shall be liable to be convicted by any evidence whatever as an offender against this Act, in respect of any Act, matter, or thing done by him, if lie shall at any time previovisly to his being indicted for such offence have disclosed any such matter or thing on oath under or in consequence of any compulsory process of any Court of law or equity, in any action, suit, or proceeding in or to which he shall have been a party, and which shall have been bond fide instituted by the party aggrieved by the Act, matter, or thing which shall have been committed by such offender aforesaid.] 5 & 6 Vict. c. 39. An Act to Amend the Law relating to Advances bonS, fide made to Agents Intrusted with Ooods. [SOth June, 1842.] Whereas by an Act passed in the sixth year of the reign of his late Majesty King George the Fourth, intituled An Act to alter and 6 Geo. 4, c. amend an Act for the better Protection of the Property of Merchants ^*' and others who may hereafter enter into Contracts or Agreements in relation to Goods, Wares, and Merchandise intrusted to Factors or Agents — validity is given, under certain circumstances, to contracts or agreements made with persons intru.sted with and in possession of the documents of title to goods and merchandise, and consignees making advances to persons abroad who are intrusted with any goods and merchandise are entitled, under certain circumstances, to a lien 558 APPENDIX. thereon, but under the said Act and the present state of the law advances cannot safely be made upon goods or documents to persons known to have possession thereof as agents only : And whereas by the said Act it is amongst other things further enacted, " That it shall be lawful to and for any person to contract with any agent intrusted with any goods, or to whom the same may be consigned, for the pur- chase of any such goods, and to receive the same of and to pay for the same to such agent, and such contract and' payment shall be binding upon and good against the owner of such goods, notwith- standing such person shall have notice that the person making such contract, or on whose, behalf such contract is made, is an agent ; provided such contract or payment be made in the usual and ordinary course of business, and that such person shall not, when such contract is entered into or payment made, have notice that such agent is not authorised to sell the same, or to receive the said purchase-money :" And whereas advances on the security of goods and merchandise have become an usual and ordinary course of business, and it is expedient and necessary that reasonable and safe facilities should be afforded thereto, and that the same protection and validity should be extended to bond fide advances upon goods and merchandise as by the said recited Act is given to sales, and that owners intrusting agents with the possession of goods and merchandise, or of documents of title thereto, should in all cases where such owners by the said recited Act or otherwise would be bound by a contract or agreement of sale be in like manner bound by any contract or agreement of pledge or lien for any advances bond fide made on the security thereof : And whereas much litigation, has arisen on the construction of the said recited Act, and the same does not extend to protect exchanges of securities bond fide made, and so much uncertainty exists in respect thereof that it is expedient to alter and amend the same, and to extend the provisions thereof, and to put the law on a clear and certain basis : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual Sana fide and temporal, and Commons, in this present Parliament assembled, persons in" ^^^ ^^ *^® authority of the same, That from and after the passing trusted witli of this Act any agent who shall thereafter be intrusted with the the posses- possession of goods, or of the documents of title to goods, shall be goods or deemed and taken to be owner of such goods and documents, so far documents as to give validity to any contract or agreement by way of pledge, thouah ^i^To, or seciirity bond fide made by any person with such agent so known to be intrusted as aforesaid, as well for any original loan, advance, or agents, payment made upon the security of such goods or documents, as also protec e . j^^, ^^^ further or continuing advance in respect thereof, and such contract or agreement shall be binding upon and good against the owner of such goods, and all other persons interested therein, not- withstanding the person claiming such pledge or lien may have had notice that the person with whom such contract or agreement is made is only an agent. Bona fide II. And be it enacted. That where any such contract or agreement exctonge" ^°'' pl^dge, lien, or security shall be made in consideration of the protected ; delivery or transfer to such agent of any other goods or merchandise, or document of title, or negotiable security, upon which the person THE FACTOES ACTS. 559 A so delivering up the same had at the time a valid and available lien and security for or in respect of a previous advance by virtue of some contract or agreement made with such agent, such contract and agreement, if bond fide on the part of the person with whom the same may be made, shall be deemed to be a contract made in con- sideration of an advance within the true intent and meaning of this Act, and shall be as valid and effectual, to all intents and purposes, and to the same extent, as if the consideration for the same had been a land fide present advance of money : Provided always, that the lien but no lien acquired under such last-mentioned contract or agreement upon the beyond the gootls or documents deposited iu exchangu shall not exceed the value goods "ivcn at the time of the goods and merchandise which, or the documents up, " ^'™" of title to which, or the negotiable security which shall be delivered up and exchanged. III. Provided always, and be it enacted. That this Act, and every But the matter and thing herein contained, shall be deemed and construed statute to bo to give validity to such contracts and agreements only, and to protect protect 'oti*v only such loans, advances, and exchanges as shall be made bond fide transactions and without notice that the agent making such contracts or agree- '"«?-'**. ments as aforesaid has not authority to make the same, or is acting Mtice that iimla fide in respect thereof against the owner of such goods and tiie agent merchandise ; and nothing herein contained shall be construed to aetmBwiUi- extend to or protect any lien or pledge for or in respect of any ante- out autho- cedent debt, owing from any agent to any person with or to whom ^^^' <«'.'»«'« such lien or pledge shall be given, nor to authorise any agent intrusted the owner' as aforesaid in deviating from any express orders or authority received from the owner ; but that, for the purpose and to the intent of pro- tecting all such bond fide loans, advances, and exchanges as aforesaid, (though made with notice of such agent not being the owner, but without any notice of the agent's acting without authority), and to no further or other intent or purpose, such contract or agreement as aforesaid shall be binding on the owner and all other persons interested in such goods. IV. And be it enacted. That any bill of lading, India warrant. Meaning of dock warrant, warehouse keeper's certificate, warrant, or order for the JJ^^ *^'''" delivery of goods, or any other document used in. the ordinary course o'/tnie™™' of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby repre- sented, shall be deemed and taken to be a document of title within the meaning of this Act ; and any agent intrusted as aforesaid, and and when possessed of any such document of title, whether derived immediately ?f ^'i* j"" from the owner of such goods, or obtained by" reason of such agent's '"^ ^ ' having been intrusted with the possession of the goods, or of any other document of title thereto, shall be deemed and taken to have been intrusted with the possession of the goods represented by such document of title as aforesaid, and all contracts pledging or giving a lien upon such document of title as aforesaid shall be deemed and taken to be respectively pledges of and liens upon the goods to which the same relates ; and such agent shall be deemed to be possessed of and when in such goods or documents, whether the same shall be in his actual Po^^'^ssion. custody, or shpJl be held by any other person subject to his control 560 APPENDIX. or for him or on his hehalf ; and where any loan or advance shall be bond fide made to any agent intrusted with and in possession of any snch goods or doeviments of title as aforesaid, on the faith of any contract or agreement in writing to consign, deposit, transfer, or deliver such goods or documents of title as aforesaid, and such goods or documents of title shall actually be received by the person making such loan oradvance,withoutnotice that such agent was not aiithorised to make such pledge or security, every snch loan or advance shall be deemed and taken to be a loan or advance on the security of such goods or documents of title within the meaning of this Act, though such goods or documents of title shall not actually be received hy the person making such loan or advance till the period subsequent wiiattobo thereto ; and any contract or agreement, whether made direct with "Mitraotor ^"^"^ agent as aforesaid, or with any clerk or other person on his a^eement," behalf, shall be deemed a contract or agreement with such agent ; and "ad- ^nd any payment made, whether by money or bills of exchange, or vance. otber negotiable security, shall be deemed and taken to be an advance jwimafacL within the meaning of this Act ; and an agent in possession as af ore- evidence of said of such goods or documents shall be taken, for the purposes of intrusting. ^-^^^ j^^^^ ^ have been intrusted therewith by the owner thereof, unless the contrary can be shown in evidence. Agent's civil V. Provided always, and be it enacted. That uotliing herein con- responsi- tained shall lessen, vary, alter, or aifect the civil responsibility of an be dhni-**° agent for any breach of duty or contract, or non-fulfilment of his nished. orders or authority in respect of any such contract, agreement, lien, or pledge as aforesaid. Agent [ *VI. Provided always, and be it enacted. That if any agent making con- intrusted as aforesaid shall, contrary to or without the authority of oont™ry*to ^^^ principal in that behalf, for his own benefit and in violation of instniction good faith, make any consigument, deposit, transfer, or delivery of of principal, g^jjy goods Or documents of title so intrusted to him as aforesaid, as misde-° and by way of a pledge, lien, or security ; or shall, coiitrary to or meaner. without such authority, for his own benefit and in violation of good faith, accept any advance on the faith of any contract or agreement to consign, deposit, transfer, or deliver such goods or documents of title as aforesaid ; every such agent shall be deemed guilty of a misdemeanor, and being convicted thereof, shall be sentenced to transportation for any term not exceeding fourteen years nor less than seven years, or to suffer such other punishment by fine or imprisonment, or by both, as the Court shall award ; and every clerk or other person who shall knowingly and wilfully act and assist in making any such consignment, deposit, transfer, or delivery, or in accepting or procuring snch advance as aforesaid, shall be deemed guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the Court, to any of the punishments which the Court shall award, as hereinbefore last mentioned : Provided never- theless, that no such agent shall be liable to any prosecution for consigning, depositing, transferring, or delivering any such goods or documents of title, in case the same sliall not be made a security for * S. 6 repealed except as to Scotland (24 & 25 Vict. v. 95), and now replaced by 24 & 25 Vict. o. 96, ss. 78—85. THE FACTORS ACTS. 561 or subject to the payment of any greater sum of money than the amount which at the time of such consignment, deposit, transfer, or delivery was justly due and owing to such agent from his principal, together with the amount of any bills of exchange drawn by or on account of such principal, and accepted by sucTi agent : Provided also, that the conviction of any such agent so convicted as aforesaid shall not be received in evidence in any action at law or suit in equity against him, and no agent intrusted as aforesaid shall be liable to be' convicted by any evidence whatsoever in respect of any act done by him, if he shall, at any time previously to his being indicted for such offence, have disclosed such act, on oath, in consequence of any compulsory process of any Court of law or equity in any action, suit, or proceeding which shall have been hotid fide instituted by any party aggrieved, or if lie shall have disclosed the same in any examination or deposition before any commissioner of bankrupt.] VII. Provided also, and be it enacted, That nothing herein con- Rig-ht of tained shall prevent such owner as aforesaid from having the right owner to to redeem such goods or documents of title pledged as aforesaid, at ''°'^'"'™ • any time before such goods shall have been sold, upon repayment of the amount of the lien thereon, or restoration of the securities in respect of which such lien may exist, and upon payment or satisfac- tion to such agent, if by him required, of any sum of money for or in respect of which such agent would by law be entitled to retain the same goods or documents, or any of them, by way of lien as against such owner, or to prevent the said owner from recovering of and from such person with whom any such goods or documents may have or to recover ■been pledged, or who shall have any such lieu thereon as aforesaid, iiai^oe of any balance or sum of money remaining in his hands as the produce ^^"^"^ ^' of the sale of such goods, after deducting the amount of the lien of such person under sucli contract or agreement as aforesaid : Provided in case of always, that in case of the bankruptcy of any such agent the owner owM™t^'"''' of the goods which shall have been so redeemed by such owner as prove for aforesaid shall, in respect of the sum paid by him on account of such amount paid agent for sucli redemption, be held to have paid such sum for the o? for TXe use of such agent before his bankruptcy, or in case the goods shall of goods, if not be so redeemed, the owner shall be deemed a creditor of such ™''cdeem- agent for the value of the goods so pledged at the time of the pledge, and shall, if he shall think fit, be entitled in either of such cases to prove for or set off the sum so paid, or the valuei of such goods, as the case may be. VIII. And be it enacted. That in construing this Act the word interpreta- " person " shall be taken to designate a body corporate or company *""' °' ^'''• as well as an individual ; and that words in the singular number shall, when necessary to give effect to the intention t>f the said Act, import also the plural, and vice versa; and words used in the mascu- line gender shall, when required, be taken to apply to a female as well as a male. IX. Provided also, and be it enacted, That nothing herein con- Not to affect tained shall be construed to give validity to or in anywise to affect any contract any contract, agreement, Uen, pledge, or other act, matter, or thing tiie passing" made or done before the passing of this Act. of this Act. O O 562 APPENDIX. 40 & 41 Vict. c.J39. An Act to amend the Factors Acts. [lOth August, 1877.] A.D. 1877. Whereas doubts have arisen with respect to the true meaning of certain provisions of the Factors Acts, and it is expedient to remove such doubts and otherwise to amend the said Acts, for the better security of persons buying or making advances on goods, or docu- ments of title to goods, in the usual and ordinary course of mercan- tile business : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Factors Acts 1. In this Act, the expression "the principal Acts" means the defined., following Acta ; that is to say. The Act of the 4th Geo. IV. (1823) c. 83. The Act of the 6th Geo. IV. (1825) c. 94. The Act of the 5th and 6th of her Majesty (1842) c. 39. And the sai'l Acts and this Act may be cited for all purposes as the " Factors Acts, 1823 to 1877." Amendment 2. Where any agent or person has been entrusted with and con- of law with tinues in the possession of any goods, or documents of title to goods, secret rovo- within the meaning of the principal Acts as amended by this Act, cation of any revocation of his entrustment or agency shall not prejudice or or^agency"* affect the title or rights of any other person wiio, without notice of such revocation, purchases such goods, or makes advances upon the faith or security of such goods or documents. With respect 3. Where any goods have been sold, and the veiidor or any person to vendora qjj yg behalf continues or is in possession of the documents of title to^tain thereto, any sale, pledge, or other disposition of the goods or docn- dooiiments ments made by such vendor or any person or agent entrusted by the ffood*8° '° vendor with the goods or documents within the meaning of the principal Acts, as amended by this Act, so continuing or being in possession, shall be as valid and effectual as if such vendor or person were an agent or person entrusted by the vendee with the goods or documents within the meaning of the principal Acta, as amended by this Act, provided the person to whom the sale, pledge, or other disposition is made has not notice that the goods have been previously sold. Withre-spect 4. Where imy goods have- been sold or conti'acted to be sold, and to vendees tijg vendee, or any person on his behalf, obtains the possession of to have'^'* ^he documents of title thereto from the vendor or his agents, any possession of sale, pledge, or disposition of such goods or documents by such •1°^"™°"*^ vendee so in possession or by any other person or agent entrusted goods" ' by the vendee with the documents within the meaning of the principal Acts as amended by this Act si i all be as valid and effectual as if such vendee or other person were an agent or person entrusted THK FACTORS ACTS. 503 by the vendor with the documents within the meaning of the principal Acts, as amended by this Act, provided the person to whom the sale, pledge, or other disposition is made has not notice of any lien or other right of the vendor in respect of the goods. 5. Where any document of title to goods has been lawfully in- with respect dorsed or otherwise transferred to any person as a vendee or owner to transfers of the goods, and such person transfers such documents by indorse- monts^of ment (or by delivery where the document is by custom, or by its title, express terms transferable by delivery, or makes the goods deliver- able to the bearer) to a person who takes the same bond fide and for valuable consideration, the last-mentioned transfer shall have the same effect for defeating any vendor's lien or right of stoppage in transitu as the transfer of a bill of lading has for defeating the right of stoppage in transitu. 6. This Act shall apply only to acts done and rights acquired after Act not to the passing of this Act. l^^H 2 INDEX. ABSOLUTE BILL OF SALE ABSTRACT OF TITLE, mortgages of freeholds mortgages of leaseholds PAOE 163 120 n. (e). 143 ACCEPTANCE, ACCEPTOR, See Bill of Exchange 8 18 Rule in Ex parte Waking 397 402 Collateral Securities 403 404 ACCOMMODATION BILL, nature of .......,., , proof on, in bankruptcy ACCORD AND SATISFACTION 10 507 381 ACCOUNT, against mortgagee, see Mortgages, Actions . . 123 — 125, 480 day of, on the Stock Exchange, see Money Market anT) Stock Exchanse 518 sale for the, on Stock Exchange 519 n. (h). I; 0. U. is evidence of ....... . 2 ACKNOWLEDGMENT under Statutes of Limitations, sec Mortgages . . . 134 141 see Collateral Seclkities 382 — 384 of receipt of notice of assignment of policy .... 80 ACTIONS AND OTHER REMEDIES In General securities, how realised 461 action, meaning of jj. divisions of ....... . ;j. prosecuted before High or Inferior Court . . ;;,. High Court split up into five Divisions .... jj., 452 co-ordinate jurisdiction of Divisions 4(j2 business assigned to particular Divisions .... jj. 566 INDEX. ACTIONS AND OTHER REMEDIES In Geneeal — continued. right to trial by jury 462 transfer or issue directed from Chancery to Common Law Division ......... ib, procedure in an ordinary action ...... ib. on specially indorsed writ . . . . . 463 under Bills of Exchange Act, &c. ... ib. Pbocedube on Speoiallt Indorsed Writ to recover debt with or without interest on bill, note, cheque, bond, statute/ guarantee, or trust indorsement of particulars and stay of proceedings default of appearance, final judgment on whether a single defendant or several appearance, application to sign judgment copy affidavit to accompany summons showing cause against application by bringing money into Court, or affidavit leave to defend, conditions of notice in lieu of statement of claim time for delivery of pleadings object to prevent delay and expense particulars to be accurately stated applications made to masters right to definite particulars leave to defend without payment into Court discretion in allowing affidavit in reply appeal from order to sign judgment writ in force for twelve months f Procedure under the Bills of Exchanoe Act, retained under Judicature Acts on bills or notes not more than six months due indorsement of writ leave to appeal, application f or . costs on higher scale, when allowed . computation of time in Ireland final judgment on affidavit or order for leave to leave to appear, conditions of . by bringing money into Court or affidavit . discretion in allowing affidavit in reply setting aside judgment or execution . order to impound bill or note stay of proceedings single writ of summons against all parties . Common Law Procedure Acts, operation of until leave to appear and defend acted on '. writ in force for six months partners cannot be sued in name of firm nor order for substituted service granted . joinder of party, by counterclaim substitution of new plaintiff action dismissed for want of prosecution . joinder of plaintiff ..... writ may issue from district registry . ib. proceed ih., 471 463 464 471, 472 464 ib., 465 ib. ib. 465 ib. 467, 472 466, 467 466 ib. ib., n. (d). ib. 467 467 ib. ib. 472 468 . ib., 471 468 ib. ib., n. (r). ib., n. (t). 469 ib. ib. ib. lb ib. ib. ib. ib., 470 470 ib., 472 470 ib. ib. ib. ib. 471 ib. INDEX. 567 ACTIONS AND OTHER REMEDIES, Pboobdure under the Bills of Exchange Act — continued. compared with procedure on specially indorsed writ . applies to cheques and notes on demand judgment on default of defendant to obtain leave regular statement of claim necessary .... Realisation and Redemption of Mohtgagbs of Real Peopekty, foreclosure or sale ........ 473 sale either judicial or extrajudicial ib., 477 foreclosure, usual mode of realisation . . . 472 action for foreclosure or redemption brought in Chancery Division ih. foreclosure not an action for recovery of land . . . 473 other claims joined with ih. redemption when an action for recovery of land . . ih. judgment on admission of mortgage ..... ib. common decree or judgment for foreclosure . . . ih., 474 personal decree for payment .... . 474 payment where and when to be made .... ib. motion for final foreclosure ...... ib. production of decree, certificate, and affidavit . . . ih. new appointment for payment ib. final order on default in pleading . . . . i6., n. (h). order to continue the account ib., 475 enlargement of time for payment 475 decree in redemption suit ib. effect of dismissal of action for redemption . . . ib. final order for redemption, or dismissal .... ib. who are proper parties . . _ ... ib. person interested in part of debt or equity of redemption . ib. cestui que trust represented by trustee .... 476 successive mortgagees, when parties ib. sub-mortgagees, proceedings by ib. disclaimer, when it entitles party to costs .... ib. by trustee in bankruptcy . . . ib. decree where several successive mortgages . . ib., 477 where tacking or foreclosure . . . . 477 costs, mortgagee generally entitled to ... . ib. when deprived of . .... ib. of re-conveyance borne by mortgagor . . . ib. judicial sales prosecuted in Chancery Division . . . 478 in what oases formerly decreed ... ib. under Chancery Jurisdiction Act . . . ib., 479 where original power of sale .... 479 where third mortgagee insists on foreclosure . ib. discretion in granting ib. deposit,, when necessary .... ib. amount of deposit ib. order for immediate ..... ib. auction, tender, private contract ... ib. extrajudicial sales, under express power, or under 23 & 24 Vict. c. 145 ih. formalities to be observed ... ih. notice to owner of equity of redemption ib. when restrained . . . . ib., 480 PA&E 471 ib. ib., 472 472 568 INDEX. ACTIONS AND OTHER EBMEDIES. Realisation and Redemption of Momgaoes of Real Pko- PEKTY — continued. extrajudicial sales, usual account against mortgageg^ in possession .... mortgagor bound by . . . surplus moneys, devolution of right to, when barred under Land Transfer Act faqe 480 ib. ib. ib. ib. Realisation and Redemption of Moetgaoes and Pawns of Personal Pboperty. foreclosure oiT sale of mortgage 481 sale of pawn ......... ib. extrajudicial sale of pawn or stock mortgage ... ib. foreclosure or judicial sale prosecuted in Chancery Division ib. redemption by action or tender ...... J6., 482 order for return of property subject to lien . . . 482 payment of claim into Court ..... ib. Realisation and Redemption of Debentures and Lloyds' Bonds. mode of enforcing depends on special statutes ... ib. general right of action on . . . . . . . ib., 483 debentures under Companies Act ib. petition to wind up summons in winding up . action on behalf of all in same interest . ib. sale or action by trustees, of property securing bonds ..... ib. winding up order, when granted . . 484 action allowed to proceed ... ib. appointment of receiver and manager . ib. Joint-Stock Companies' Arrangement Act ib. debentures under Mortgage Debenture Acts ... ib. receiver, power to obtain when principal or interest in arrear ib. appointment and control by petition or summons ii. powers of ib. debentures under Companies Clauses Act .... ib. receiver power to obtain . . . . . , ib., 485 See also Dbbentdbes 285, 294 Lloyd's bonds 485 remedies depend on nature of instrument and of issuing body ib. Assignments may create mortgages or charges ..... ib. equitable, how enforced ....... 317 constituting a trust enforced by sale ib. Liens confer right (1) to retain or (2) to realise . (1) possessory and vendors' on personal property (2) vendors' on real property, particular, maritime, or equit able ......... interlocutory order for delivery up of chattels subject to ib. 486 ib. ib. INDEX. 569 ACTIONS AND OTHER BEMEDIES. Liens — continued. vendors' and equitable on real property innkeeper, banker, or factor's maritime, by action in rem or in personam action in rem procedure service of writ warrant to arrest . citation in rem, caveat against release seizure of foreign vessel time for delivery of statement of claim realisation of res . payment on bail bond . or out of Court PAGE 486 ih. In the County Coubt jurisdiction, common law, equitable and Admiralty plaint and summons ...... filing of particulars ...... analogous procedure on specially indorsed writ . on Bills Act to realise security on property for debts not exceeding £50 .... for claim above £10 on Bills Act jurisdiction extended by consent trusts, mortgages, liens to £500 salvage, towage, necessaries, damage, hire of ship remitted from High Court .... costs, plaintiff deprived of . transferred to High Court ..... ih., 487 487 ib. ib. ib. ib. 488, 489 ib. ib. ib. ib. ,489 489 ACTION IK MEM, See Actions and other Kbmedies, Liens. ACTS OF PARLIAMENT, See Table of. ADMINISTRATION, See Bankruptcy, Locke King's Acts. bond ADMIRALTY, See Liens {Maritime Liens) ADVERTISEMENT imder Innkeepers' Act .... AFFIDAVIT on bill of sale stamp, when necessary .... procedure on specially indorsed writ . under Bills of Exchange Act AGENT, assignment of effects in hands of foreign . appropriation of goods to bills accepted by 107, 108 364 354 196, 197, 216—218 233 464—467 . . . 469—472 311 402 570 INDEX. AGENT— continued. right to securities for bills accepted by general rule of law as to how affected by custom ..... of equitable mortgagor, fraud by . . . notice through ....... possessory lien may be obtained and held by stockbroker's relation as . of banker has no authority to issue deposit receipt stoppage in transitu by .... . pawns by, see Pawns (The Faotobs Acts) vendor's power as mercantile, under Factors Acts PAGB 403 491, 492 226 235 348 527, 530 234, 346 252—262 343 AGISTMENT confers no lien 355 AGREEMENT, See CoNTEAcr within Statute of Frauds . . . . . . . .103 vitiated by champerty ........ equitable assignment operates by ..... . equitable mortgage is executed for Uen ........... for salvage 367, 368 for interest 421 barring right of stoppage in trcmsitu ...... 344 I on 429, 433, 434 109 305 303 109 328 AGRICULTURAL fixtures 171, 172 Holdings Act 173—175 ALLOTMENT, dealings in shares before ....... 518, 534, 535 ANNUAL RESTS ANNUITY, nature of . policy , . redeemable life . government 123, 124 495 85 405, 407 398 APPROPRIATION, See Rule in Ex Pakte Wabing in hands of banker to meet bills .... 397-402 357 607 ARTICLES OF ASSOCIATION, See Debentdkes ASSIGNEE, See Titles ov Various Seoukities passim. of debt must use diligence of goods subject to distress 269 391 178 INDEX. 571 ASSIGNMENT, mortgage of leaseholds created by ... . mortgagee of leasehold not bound to take . when an act of bankruptcy ..... of bill of sale, registration on . . . . . ASSIGNMENTS, In General may create or transfer securities may be of property or of mere right . of property treated under mortgages of mere right, and of securities treated of in sequel distinguished from liens ..... powers to seize how realised ...... passing debt or security, see Collatekal Seoukities choses in action not assignable at common law . (the generality of this rule questioned) negotiable bills an exception assignable in equity .... right to sue on, in equity . assignable under Bankruptcy and Policy of In^ surance Acts Bills of Lading Act, does not affect right of stoppage in transitu assignee under, takes, subject to equities . effect of indorsement for valuable consideration, past or present ...... Judicature Act does not curtail equitable ..... division of stibject Equitable Assignments operate as agreements ....... not enforceable except when founded on valuable considera- tion .... or as complete trust require no particular form ....... but must be of given fund or debt ..... are otherwise bills of exchange . .... generally aU property subject of .... of future property under antenuptial settlement of future profits of public emoluments of arrearages thereof .... ... of proceeds of army commission ...... of bankrupt's pay or half pay ... . . of mere right of action ... ... of mortgage debt of mortgages of ships ........ of vendor's lien of solicitor's lien of policies of Lloyd's bonds tainted by champerty or maintenance .... between parent and child, master and servant . under Solicitors Act, 1870 of right of action coupled with interest . . . under bond fide agreement for share in result of suit . PAGE 142 229 182—184 220 162, 300 ib, 485 300 ib. 327' 163 485 407—411 300, 301 ib., n. (a) 301 ib., 302 302, n. (d) 302 ib. ib. ib., 303 303 ib. ib. ib., 304 304 ib. ib. 304 ib. ib. ib. ib., 305 305 111 150, 151 330, 331 360, 361 85—87 298, 299 305 ib. ib. ib. ib. 572 INDEX. ASSIGNMENTS. Equitable Assionjibnts — contirmed. may be verbal or in writing voluntary not aided by deed ..... bond or judgment transferred by .... locus panitentice under not constituted by opening credit for a particular sum nor by assurance that drawee of bill has funds to meet same nor by promise of payment when debt due shall be paid notice to trustee not necessary but its omission renders assignment defeasible binds trustee or debtor without his privity confers priority amongst successive assignees . except where assignee volunteer or with notice perfects assignment ...... avoids order and disposition of bankrupt assignor . when necessary under Bankruptcy Act, 1869 . as to debts due to a bankrupt when to be given under former bankruptcy law as to policies of insurance ..... application of decisions under former law as to may be verbal or in writing need not be personally given by assignee sufficient when received in course of business . of assignor's petition in bankruptcy by sub-purchaser to original vendor to liquidator of company to one of several co-trustees .... no constructive, by omission in biU of lading of or assigns" interested trustee not bound to give to subsequent assignee of assignment of effects in hands of foreign agent ineffectual until debt or trust exist . valid, though fund be not then payable . assignee takes subject to equities .... right of debtor to set off, but not to counterclaim equities on successive assignments conversion of negotiable into assignable choses in action equities on over-due bill . set-off between acceptor and drawer assignment of secured debt passes security mortgagee ca'nnot alienate security from debt rights of surety and guaranteed creditor . assignment of security when it passes debt mode of transferring bonds and judgments transfer of security governed by intention except in case of negotiable instruments mere lien conferred . . . . . holder of lien entitled against transferee of debt ...... assignee of security when tmstee ■ order FAOE 305 ib. ib., n. (r) 306 ib. ib. ib. a. ib., 307 307 ib. ib. a. ib. 307, 308 308 308, 309 a. 309 ib. ib. ib., 310 310 ib. ib. ib. ib. ib. 311 ib. ib. ib. ib., 312 312 ib. ib. 313 ib. ib. ib., 314 315 a. ib. ib. ib. 314, 315 315 INDEX. 573 ASSIGNMENTS. Equitable AaaiasntiNTa— continued. assignee with equitable mortgage . assignor restrained from suing debtor Assignments under Judicature Act, s. 25, sub-s. 6, 38 & 37 Vict. o. 66 transcribed . its general effect discussed ..... action under, may be brought in any division duality of legal and equitable interests assignee obtains legal interest .... legal and equitable interest illustrated by bequest when action should be in Chancery Division analysis of above provision .... Nature and Effect of Assignment must be absolute, i.e., free from condition in writing under hand of assignor not purport to be by way of charge only of part of debt does not create new kind of assignment assignment operates only from notice . Subject of Assignment must be of debt or legal chose in acticm may be of shares or other incorporeal property . but not of funds or rights held by cestui que trust e.g., purchase money of real estate confined to special class of choses in action nature and effect of notice to trustee or debtor . must be by express writing .... need not be given by assignee nor signed . mere claim not sufficient legal rights and remedies pass from date of empowers assignee to give discharge ... priority of, determines priority of successive assignees when ineffectual Procedure by Trustee or Debtm- where assignment disputed by interpleader on payment into Court where notice of valid claims where assignor adjudicated bankrupt . practice in interpleader payment into Court under Trustee Relief Acts . Recent Decisions future debt may be assigned .... debtor bound notwithstanding refusal to accept notice assignor need not be party to action .... subject to equities before notice .... effect of the Stamp Act PAGE 315 ib. 316 316—319 317 ib., 318 318 ib., 319 319 ib. 319 ib. ib. ib. 320 ib. ib. ib., 321 321 ib. ib. 321 ib. ib. 322 ib. ib. ib. . ib., 323 . 323, 324 324—326 326 ih. ib. ATTESTATION, bill of sale cognovit actionem warrant of attorney 199, 218 95 ib. 574 INDEX. ATTORNEY, page See Solicitor, Power op Attorney, Waebant op Attobney. ATTORNMENT, See Bills op Sale 204, 545 AUCTIONEERS' LIEN 355 AUTHORITY, See Agent, Ultra Vires, Agreement (within Statute of Fraude). BACKWARDATION on Stock Exchange .... . . . 534 BAIL BOND in Admiralty action 107, 364 BAILEE AND BAILMENTS. See IjIBNS. BANK CHARTER ACT . . . . ' . 28, 29 n. (r), 30, 37 n. (h). BANK HOLIDAYS 5,9 BANK NOTES. definition of 26 not subject to Statute of Limitations j5. classification of ........ H. Bank op England Notes, form of ......... , 27 are promissory notes, payable on demand . . . ib. stopped, hondjide holder entitled to payment of . . ib. no risk in cashing ........ ib. distinguished from common promissory notes ... ib. issue of 28, 29, n. (r). exchange of, for gold bullion 28 must be for £5 or upwards 29 forgery of j6. exempted from stamp duty jj. are legal tender iJ.^ 30 may be transmitted in halves .... , 30 English Country Bank Notes, issue of . . . amount of . stamp on . not a legal tender '. when a discharge of debt presentation of . notice of dishonour on ib. 31 32 ib. ib. Bank op Ireland Notes, issue of . . . . . 32, 33 nature of . . ... 33 amount of . . . . . . ib. not a legal tender . ij_ INDEX 575 PAGE Otheb Irish Bank Notes ... ... 33, 34 Scotch Bank Notes 34 FoREroN Bank Notes .... ... ib. classification of ... . . . . j'J. rights of holder of ih., 35 BANK or ENGLAND, creation and powers of ... . ... 28, 29 notes, see Bank Notks 27 — 30 post bills .... 37 payment on exchequer bills by 66 as a discounter 512 debt 498 management of funds by 499, 500 exemptions from stamp duty ..... 433, 435, 436, 457 BANK OF IRELAND, creation and powers of ....... . 32, 33 notes, see Bank Notes 33 debt 498 exemptions from stamp duty 433, 436, 457 BANK OF SCOTLAND 34 BANK POST BIIiL, definition of 36 form of .......... . ill, nature of .......... . n,, when taken as money ........ 37 issue of ib,, n. (h). BANK BATE 512 SHARES in joint-stock companies, dealings in before allot- ment prohibited 518 STOCK, mortgage of 155 BANKER. liability to customer, see Cheques lien of , sec Liens 355—357,403,511 equitable mortgage to, by customer 227, 228 stockbroker is not . . ^. 530 English, distinguished from foreign and bill broker . . . 505 his position in the discount mirlcet, see Money Makket AND Stock Exchange ... . . 506, 513 BANKERS ACT (IRELAND) registration of mortgages under 225,226 BANKER'S DEPOSIT RECEIPT NOTES, definition of . 38 form of ib. nature of vii., ib. stamp on ib., 39, 456 interest on 39 authority of agent to issue jj. how affected by change in banking firm jj 576 INDEX. BANKER'S DEPOSIT RECEIPT NOTES— coniinMct?. PAGE subject of donatio mortis causa 39, 415 transfer of 39, 40 double liability on 40 within statute of Umitations ib. BANKRUPTCY generally, see Mobtgages (bills of sale) . . . . . 179, 197 of drawer and acceptor of outstanding bills, see Rule in Ex PARTE Waking 397 — 402 marshalling in, see Collatekal Secubities .... 396, 397 order and disposition clause in . . . . 214, 215, 221, 306, 308 administration in, no priority of personal securities . . 45, 61, 90, 91 secured creditor in . .> . . . . . . . 396, 397 of assignor, practice where assigned chose in action disputed 322, 323 of assignor, notice of petition by ...... 310 of principal, lien of factor ....... 356, n. (e). of principal, right of stockbroker to sell out .... 529 of client, lien of solicitor ........ 358 of solicitor, discharge by 360 of mortgagee of ship ......... 151 of grantor of bill of sale, effect on successive renewals . . 220, 221 proof in, on sham or accommodation bills .... 507 distinguished from default on stock exchange .... 517 liquidation, or composition, effect of on liability of surety . . 102, 103 pay or half -pay assignable under 304, 305 Act, interest prescribed by ...... . 423 assignability of choses in action under .... 302 stamp exemptions under ... ... 432 See Assignments. BARGAINS unconscionable not enforced ...... 64, 421, 422 BEAR on stock exchange ......... 534, 535 BEARER, bank notes payable to ....... . 26 bills of exchange 263, 509 — 511 cheques . . . 19, 25 debentures ...... ... 263 exchequer bills . ........ 66 exchequer bonds ... • . . . . ' 69 foreign government securities . . .... 74, 75 promissory notps .... ... 6 — 7, 263 treasury bills 71 See Negotiable BEQUEST, of debt 319 of railway shaves passes railway stock . ... 498 BET, See Monet Mabket and Stock Exchange .... 535, 537 INDEX. 577 BILL BEOKEK, See Money Market and Stock Exchange BILLS OF EXCHANGE, definition of . , , form of ... . stamp on . conversion of notes into must be absolute and for valuable consideration presumption of consideration for distinguished from assignments whether Post Office Orders are are seciu'ities for money Inland classification of . transfer of . days of grace on maturing on bank holidays nature and effect of retiring Acceptance and Acceptor. valid acceptance, -whsA constitutes acceptor primarily liable not estopped from showing absence of presentment for acceptance , acceptance is general or special . acceptor not eutitled to delivery of no acceptance supra protest rights of acceptor supra protest . no privity between drawer and banker pays funds .... bankruptcy of acceptor and drawer, Waking .... 504—512 Indorsement, Indorsee, Indorser. meaning of indorsement . . indorsement in full or in blank . indorsement sans recours effect of indorsement . indorsers are sureties for payment notice of dishonour to indorser . indorsee of overdue, takes subject to equities consideration i-negotiable to whom a( EULB IN Ex ptor Parte ib., 55 427, 429 8, n. (a) ib. ib. 304 55—69 vi., vii. 9,13 9 9,4—7 lb. ib. 10 9 2, 9 lu ib. 411 12 13 11 397—402 9,5 ib. 9, 6 9, 6, 507 9, 420 11 312, 313, 500 Drawer, Drawee, Payee, Holder. definition of ....... liability of drawer . . . . . . . . 9, 10 assurance by drawer that drawee has funds to meet . , 300 authority to draw under Companies Act .... 372 duty of holder of bill accepted SMpra protesJ . ... 12,13 holder's right to collateral securities, see Collateral Secdbities 397 — 404 Payment and Discharge. payable on demand or at sight, after date or after sight , 9, 4, 5 payable after sight, meaning of 10, n. (x) presentment for payment 10, 11 notice of dishonour 11 P P 578 INDEX. 390, BILLS OF EXCHANGE— cowiiHMeii. Inland — continued. Payment and Discha/rge — continued. protest of . noting payment of lost, on indemnity . taking in payment suspends right of action effect of taking, on vendor's lien interest on ..... cancelled by material alteration no merger of joint debt by . subject to Stalute of Limitations subject of donatio mortis causa . Accommodation, what are ..... notice of dishonour on . . . proof in bankruptcy on . . . NeyotiaHility of, see Negotiable. ■Pledr/e and Discount of, see Monet Market and Stock Ex- change 606- 12 ib. 411 391 334 422 418 387 382, 383 415 11 ib., 12 307 -513 Actions ore, see Actions and otheb Remedies FOBEIGN. definition of ..... . distinguished from inland .... form of circulate in sets ...... satisfaction, transfer, and liability on drawn at usance ..... usance to be extended by days of grace table of days of grace 463, 468—472 13 ib., 9 14 13 14 13 14 . ib. n. (g) protest on 13, 14 retow sans protM or sans frais ...... 15 expenses recoverable by drawer ...... ib. re-exchange, what ........ ib. retraite, what ib. jointly governed by English and Foreign law . . . 15 — 18 effect of lex loci contractus ....... 15^ — 17 lexfori . ib. lex loci solutionis ....... ib, rate of interest on , . 17, 18 price of 512, 513 generally as a commodity, gee MoKET Market and Stock Exchange 504—513 BILLS OF LADING, definition of 343 nature of viii, 338, 343—347 omission of " order or assigns in " 310 general effect on vendor's lien, see Liens . carrier's lien ..... under Factor's Acts, see Liens ..... right of drawee of bill covered by . . 343 347 352 346, 347 507 INDEX. 579 BII.LS OF -L&DmG—continiied. ^^™ effect of transfer of, on goods appropriated to meet bills . , 401 incorporatiDg charter-party ....... 352 •A-ct ! ." V, 302 BILLS OF SALE. See Mortgages 159 222 BLANK indorsement in, on note or biU 5 on debenture ....... 188 deed of transfer executed in 529, iJ., n. (r). BONA FIDES effect of, on transfer of negotiable instruments. . . 302, 508, 509 on policy of assuj'ance ,.,.... 407 on assignment of choses in action .... 305, 307 under statutes of fraudulent gifts, see Mobtgages (Bills cfSale) . ' 165—170 under Bankruptcy Act, see Mortgages (Bill^ of Sale) . 193, 194 BONDS definition of 60 merge simple contract ib., 386 work estoppel ib. import consideration ......... ib., 61 are barred by twenty years' limitation , . .61, 136, 141, 382 not discharged, but by matter of, as liigh nature . . . 61 have no priority in a^bninistration over simple contract debts . ib. are simple ib. or double ib., 62 penalty on, meaning and effect of . , . , . , . . 61 — 63 distinguished from liquidated damages ... 62 generally no recovery of principal and interest beyond 62, 422 otherwise where there is a mortgage or special agreement .... 62, 63 •entry of judgment for full penalty under 8 & 9 W. III. c. 11 63 to pay instalments ....... ib. transfer of . ' 305 n. (e), 314 gift of inter vivos ......... 412 donatio mortis cmtsa.oi ........ 415 assignee takes, .subject to. equities ...... 265, 266 •cancellation of,, by dielivery to debtor 417 -or by fulfilment of purpose for, which given .... ib. . residuary .legatee restrained from suing on . . . . 417 obligor not entitled to delivery up of 411 distinguished from debentures 267 debenture may be in form of 2'71 tlo not bind property . . 270 effect of, on vendor's lien 334 nature of, as discount or investment securities .... 495 interest on 422 stamp on 439, 440 .p p 2 580 INDEX. PA8E BONDS — continued. action on ..,..,,... . 463 to replace etock or shares ........ 1S8 of corporations .......... 269 of foreign governments ........ 74 registration of, see Dbbentubes. proportion of holders of, to consent to scheme, see Debenthees 289 — 291 are absolute or contingent ....... 63 are securities for money ........ vi. Post Obits. what ........... ib. priority of ......... . 64 when impeachable ........ ib. Infants' Relief Act, 1874. contracts during infancy incapable of confirmation . . «'5. acceptance for debt during acceptor's infancy when valid (see Belfast Banking Co. v. Dohektt) . . 263 n. (b). See Bail Bond, Debentoees. BONUS on policy 85 on shares mortgaged ......... 157 BOOKS 01" BANK OP ENGLAND 499 BORROWING POWERS, See Debentuees 267, 271, 282, 292 BOTTOMRY, See Liens 366, 367, 374 BOUGHT AND SOLD NOTES 492, 493, 527 BOURSE distinguished from London Stock Exchange .... 513, 514 BROKER what 491 distinguished from factor ib., 252, n. (q). general rights and liabilities of 491, 492 biU broker 504—512 stock broker • 513—516, 527—530 insurance broker 355^ 356 licence to practise as in city of London . . . , , 5] 5 BROKER'S BOOK 527 BUILDING SOCIETY, Acts, mortgage under ..... . , 123 stamp under ......... 227 equitable mortgagee's lien against official liquidator of . , 432, 454 INDEX. 581 PAQE BULL on Stock Exchange 534, 535 CALICO PKINTEE, lien of 335 CALL on shares when it may be charged ...... 275 liability for, on mortgage 157 meaning of, as term of speculation ...... 537 CANCELLATION, see Collateral Seoubities .... 416—418 CARGO, carrier's lien on, see Liens (carrier's lien) .... 350 — 352 maritime lien on, see Liens (maritime Kens) . . . 364 — 377 CAREIBE, his relation to right of stoppage in transitu, see Liens . 344 — 347 common what .......... 349 lien of 349—352 not within Factors Acts 261 CERTIFICATE nature of .......... . 338 of share 224 of stock 499, 500 of debenture stock 286 of mortgage .......... 153, 154 of railway stock, gift of 412, 415 payable to bearer 75 CESTUI QUE TKUST, See Tbust. CHAMPEKTY 305 CHARGE, nature of .......... . 233 distinguished from mortgage 485 debenture 267 Uen 327 assignment under Judicature Act not to be by way of . . 319, 320 registration of under Companies Act 275 CHARGING ORDER, 1^ judgment creditor . . ■ 93 by solicitor for costs, see Liens ~ 361 — 363 CHARTER, CHARTERER, CHARTER PARTY, See Liens 351) 362 582 INDEX. PAGE CHATTELS, transfer of 159—161 delivery up of subject to lien 482 mortgage of, see MoEiaAfiBS , 142-322 pledge of, see Pawns 241 — 262 CHEAP TRAINS ACT 295, 296 CHEQUES, Open 22, 23 definition of ........ . 19 form of ......... . ib. generally subject to same principles as similar bill . . i&. presentment of ........ . ib. notice of dishonour on ....... ib., 20 banker's authority and duty with respect to . . 20, 21, 3S6 stopping, meaning and effect of 20 forged, upon whom loss falls 21 customer's handwriting on, duty of banker to know . . ib. unauthorised indorsement of, when banker protected . 22 honoured at branch where account kept .... 356 effect of alteration of date of . . . . . . 418 not subject of donatio mortis causa . . . . . 415 even where pass-book delivered . . ... , ib. unless presented or transferred during donor's life . . ib. payee cannot sue banker as assignee under Judicature Act 320 stamp on 435, 437 post dated 428, 429 action on 463, 471 limitation of 382, 383 Ckossbd Act 539—541 definition of 23, 639 applies to dividend warrants ...... 500, 539 whether to post office orders ...... 58 form of ......... . 23 general or special crossing ...... 23, 24, 539 by drawer or lawful holder ...... 23, 540 crossing forms material part of ..... . jft, may be made after issue ....... ib. effect of special crossing 23j 24, 540 not to be specially crossed with more than one banker's name 24, 540 adding " not negotiable " 24, 25, 540 liability of banker 24, 25, 540, 541 object of Act 24 protection of drawer 23, 25, 540 of payee ........ ih. of banker jft.^ 541 are negotiable instruments ...... 25 unless negotiability excluded by indorsement ... ih. forged or stolen ib. former statutes, mode of crossing 23 n. (e). effect of 24, 25 repeal of .... .23, 539, 54: INDEX. 583 CHOSE IN ACTION-, ^''^"^ aaslgmnent of generally, see Assignments. how made 412 418 assignability of debenture as 272 contracts on Stock Exchange not assignable as . ■ . . 522 policy of insurance is 88 CmCULAR NOTE, See Lettbk of Ckedit. COFFEE HOUSE is. seldom an inn 353 COGNOVIT, See JurGMENT Sbcdkites. COLLATERAL SECURITIES, division of securities 378 plurality of securities, when advisable .... ib. definition ib., 519 guarantees, a species of ...... . 379 Op General Discharge and Satiseaciion each security must be enforceable by action discharge of debt discharges securities modes of discharge ...... discharge by release distinguished from accord and satisfaC' tion ..... form of .... . bars even debts of record of one joint debtor, when discharge all by operation of law the same in equity and at law by accord and satisfaction .... for liquidated debt, conditions of of bond debt ..... partial discharge of debt, partial discharge of securities Statutes of Limitation har hy . on simple contracts, specialties, judgments bills and notes payable on demand where person entitled under disability payment of principal or interest, acknowledgment in writing' ........ when right or only remedy barred acknowledgment under seal operates as consent to pay voluntary payment only renews cause of action . acknowledgment or indorsement of payment on bill or note what a sufficient acknowledgement .... examples of sufficient and insufficient acknowledgments Ba/r hy Estoppel _ ■ representation must be of fact not of mere intention by married woman having separate estate ib. ib. ib. ib., 380 ib. ib. ib. ib., 381 ib. 381 ib. ib. ib., 382 382 ib. ib. ib. 382 n. 383 (u). 383 383 ib. ib. '384 584 INDEX. COLLATERAL SEOVBITI^B- continued. Of Merger, discharge by substitution of another security mortgage, joint security, policies of insurance when by bond by stranger by operation of law — merger division of contracts in English law . meiger of simple and special contracts annihilates contract . . . . _ • obtains whether judgment voluntary or involun- tary where less sum recovered . none of joint debt by separate dishonoured bill by judgment on joint debt .... against one of two partners .... when debt joint and several .... only where contracts co-extensive and not merely collateral ..... judgment entered up on a warrant of attorney . where bond collateral security .... given by partners . . . - principle of, whether limited to remedy , judgment for debt during infancy release to surety of joint judgment . ih., ih., n. ib., n. j5., 94, ib., : (k). (e). 38S ib. 387 ib. ih. ih. ib. ih. ib. ib. ib., 9 n. ib. 390 (a). 3.90 Op Co-existent Rights op Action when security and not debt must be sued on . , bill or note taken in payment suspends right of action mortgagee may sue on implied assumpsit or covenant assignee of debt must use diligence .... bill or note as mere security does not suspend right to sue right to sue on debt and securities, conditions of collateral security, meaning of . holder of collateral securities may sue on all e.g., mortgagee ....... debt extinguished by negotiation of bill c.r note foreclosure of mortgage foreclosure opened by action on collateral security when foreclosure should be avoided . proceeding on several securities . , ib.. ib. ih. 391 ih. ib. ih. ib., 392 392 ib. ib. ib. , n. (u). ib., 393 393 Op Makshaliing, rights of holder of one against holder of several securities surety for mortgagor of policies against trustee in bank ruptcy ........ double fund must belong to same debtor ■ cannot interfere with rights of third parties . , third niortgage made subject to prior mortgages judgment, settlement, and subsequent judgment judgment creditor's right not equal to mortgagee's . obtains in administration of deceased's or bankrupt's estate nature pf fupds immaterial , , ' . supposes double fund and" valid charges ib., 394 394 ih. ib. 395 ib. ib. INDEX. 585 COLLATERAL SECURITIES -continued. Op MABSHALLING^-COTCiiMKCcJ. in bankruptcy, secured creditor rights of . . . . 396 execution, and judgment creditors, wlien secured ib., 397 secured creditor bound by assessment . . 297 in composition ift. Of the Rule in Ex Parte Waring. a principle of equilable administration bill holders given a specific lien on securities for bUls conferred by equity, not by contract .... arises by sort of necessity application of rule, conditions of ... . 1. Double Insolvency of Drawer and Acceptor of Outstandina Bills must involve forced administration of both estates facts and decree in ex parte Waring . application to double banlvruptcy, insolvency, winding up administration must be judicial . , , . . both parties must be within jurisdiction double proof on bill and debt thereby represented securities need not be deposited by drawer or acceptor 2. Specific Appropriation of Securities to meet Bills bills must have been accepted ..... appropriation express or by course of dealing but not by mere assurance of drawer to holder . nor by placing invoice .price to credit and bills to debit no power to appropriate when goods shipped and bills lading parted with ...... appropriation to general credit including biUs sufficient 3. Continuance of Securities as Indemnities bill holders have no lien, if original appropriation deter^ mined ....... misappropriation by acceptor of part does not destroy bill holder's rights ...... of 397 ib. 399 , 408 399 ib. . 400 400 ib. 400, 401 400 ib. ib., 401 401 ib. 401, 402 402 ib. ib. ib. ib. ib. 4. No Agreement by Bill Holders as to Securities rule obtains where parties principal and agent . whether parties know of appropriation or not whether securities sufficient or not . Of Appropriation of Goods to Meet Bills. right of drawer, acceptor, or indorsee of bill to collateral securities ......... ib., 413 of commission agent on goods for acceptance . . . 403 of holder of bill to policy moneys for loss of goods . . ib. lien of bankers excluded ib. lien on goods consigned not co-extensive with lien on policy thereon . . . . _ . . _ . . . ib., 404 stoppage m transitu, consignee entitled to policy moneys . ib, bm drawn against particular cargo, when holder has lieu . ib. Of Policies Collateral to a Debt. insurance by creditor on debtor's life .... ib. 586 INDEX. PAGE COLLATERAL SECURITIES— con^rewed. Of Policies Collateral to a Debt — continued. right to poUcy depends on premiums by whom paid . . ib. debtor entitled to policy, when ...... ib., 405 where premiums charged to debtor in creditors' books . 405 sale of annuity with condition for repurchase distinguished from loan ib. grantor of redeemable annuity, when entitled to securities on redemption ib., 406 policy on debtor's life distinguished from policy on grantor of annuity's life 406 payment of part of premiums — salvage .... ib. debt discharged by creditor receiving policy moneys, even when'insured ........ 407 grantor of bill of sale insuring, when entitled , . . 407 Op Assignment and Delivery up op Securities. assignment, delivery up, and cancellation .... 407 Mercantile Law Amendment Act, assignment to co-surety or co-debtor . . ib., 408 its application — assignment of satisfied judgment . . 408 as to joining assignor in action on assigned judgment or bond ib., 409 creditor bound to retain securities given by principal debtor for surety 409 so of assignor and assigned, and debtor and creditor of debt satisfied .,.....,. ib, assignment of debt carries securities ..... ib._ assignment of security carries debt . ; . . . ib. reassignment of securities on discharge of debt ... ib. mortgagee bound to retransfer property .... ib., 410 not otherwise allowed to sue for debt . , 410 redelivery of personal securities, when granted . . . ib. obligor not entitled to redelivery of bond .... 411 so of maker or acceptor of non-negotiable note or bill . . ib. payee or indorsee of lost negotiable instrument may obtain payment on indemnity . ib. Qp THE Gift and Extinguishment op . Seoueitibs. donee of debt or forgiven debtor entitled to securities therefor ......... ib. donation or cancellation of debt, how effected . . . ib. , Donfttion by act inter vivos . . . . . . .411,414 donation to availmust be complete, or bind as declaration of trust . • ib., 412 debts and choses in action, how assignable .... 412 donation, when complete ib. donee and transferee of bond, or certificates of railway stock ib. donation test of its validity ...... ib. donation by declaration of trust ..... iJ., 413 intention of immediate gift inconsistent with declaration of trust 413, 414 memorandum on lease insufficient gift . . . . i6., 414 Donatio mortis causd i .414,416 debt cannot be subject of, unless secured . . , . 414 INDEX. 587 COLLATEKAL S-ECUBITIEB— continued. Of the GirT and Extinouishment of Secukities— conimiied Donatio mortis causd — continued, delivery of receipts for Sovith Sea Anrraities, certificates of railway stock not good ib,, iV5 so of cheque, even vi^ith pass-book, unless presented or transferred during donor's life . . . . . 415 nor in general a delivery by symbol . , . . . 415 delivery of bUls, notes, bonds, I O tJ's, banlcers' deposit notes, policies, mortgage deeds, may effect ... ib. definition ib., 416 conditions of validity 416 contemplation of death ....... ib. conditional on death ... delivery of possession ........ ib. when valid as declaration of trust Donation by will .... Cancellation of debt by gift to debtor by will of creditor by entry of discharge in books ... ib. by evidence in letters, &c., of testator . ib., 417 promissory note, non-cancellation by testator's declaration 417 residuary legatee restrained from suing on bond . . ib. release of debts by wUl may speak from date thereof or death of testator ........ ib. delivery up of bond to obligor, oanceUatiou of debt . , ib. delivery up of policy in consideration of payment of prO' bate duty ib. delivery up of security, when a release of debt . . . ib., 418 mortgage found cancelled in mortgagee's possession . . 418 cancellation by material alteration in bond, bill, &c. . . ib. of date in cheque . , ib. immaterial alteration no longer fatal ..... ib. security for collateral purpose cancelled by fulfilment of purpose ib. Oe the Relative Value of Sechmties. securities on property superiority of over personal securities by simple contract 419 securities on property compared with personal securities under seal or by record. ... . . ib. judgment security, advantages of .... . ib. no longer charge on land 91 insolvency cannot defeat well created security on property . ib. securities on property as between themselves. . . . 420 legal preferable to equitable title ib. persohal securities as between themselves .... ib. under negotiable bill or note holder has indorsers for sureties COLONIAL GOVERNMENT SECURITIES, law governing ..... not included in foreign government stock COMMISSION when recoverable by stockbroker, Stock Exchange ib. 500, 501 501 Money Makket and . 527, 530, 536 588 INDEX. PAGE COMMISSION AGENT, lien of, on goods to meet acceptances 403 COMMITTEE OF STOCK EXCHANGE 515 COMMODITY. See MoKBT Market and Stock Exchange .... 490, 500 COMMON CARRIER 349, 350 COMMON LAW JURISDICTION .... 317, 319, 462, 488, 489 COMMON LAW PROCEDURE ACTS apply to procedure under Bills of Exchange Act . . . 469, 472 COMPANY, powers and nature of, see Deb]6ntures 267, 291 contracts by 77, 267, 268 liabilities of shareholders .......•- 503 See Lloyd's Bonds 295—299 Shabes. Registration. COMPOUND INTEREST, when allowed 422, 424 .CONDITIONAL, BILL OF SALE 163 CONDITIONAL SURRENDER 147 CONSIDERATION, valuable, what is 168, 169 onlOU 2 on bills and notes . . . . . . . . 3, 4, 9 imported by deed . . . . . . . . . 60, 61 by judgment 89 to be stated in bill of sale ........ 222 in debentures under Clauses Acts .... 282, 292 on purchase of estate 332 in transfers on Stock Exchange . 520 stamp on , . ' . . 430 CONSOLIDATION of mortgages 114, 115, 229, 230, 477 of shares into stock 497, 498, 501, 502 CONSOLS 498 CONSTRUCTIVE NOTICE. See Mortgages (Equitable Mortgages) 233, 234 CONTANGO, meaning of, on Stock Exchange ..,..,. 534 INDEX. 689 CONTINGENCY ^^™ in bond g3 in life policy .......... 77 in mortgage ••■....... 310 CONTINUATION on Stock Exchange 526, 529 CONTINUING GUARANTEE 106, 107 CONTRACT, division of, in English law 386, 387 nature of simple. ......... 34 special 60, 61 record 89, 90 note 492 See AoHEEMENT, Company, Mohby Maeket and Stock Exchange. CONTRIBUTION. See GUAKANTEES. CONVEYANCE. See Tkanspeb. COPYHOLD. See MoKTOAGES 147 149 CORPOKATIO.NS, nature of powers, see Debentures 267, 268 property of charged by Lloyd's Bonds 299 COSTS, lien for, see Liens (Solicitors' Lien) 358, 363 right to, in High Court 489 scale of 468, n. (r) on mortgages 477 CO-SURETY. See Guarantees. COUNTERCLAIM on assignment under Judicature Act 311 joinder by, under Bills Act 470 COUPONS on Exchequer bills 67 68 for half-yearly interest 402 n. (e). stock certificates 499, 500 stamp on 427, n. (r), 433 COUNTY COURT. See CoDBT. COURT. jurisdiction lof High 317 — 319 County 488, 489 COURSE OE DEALING, appropriation of goods to meet biUs, by 400 OOO INDEX. PAGE COVENANT, See Bond, Deed. CREDIT, letters of,-sec Letters of Credit, seuuritiea on ....•■••• • "^ CREDITORS, validity of bills of sale against, see Moktgaoes {^BUU of Sale) 165—170 CROSSED CHEQUES. See Chkques, CROWN DEBTS. See G-UAKANTEKS, CUSTOM, negotiability conferred by . . 264, 265 of trade, its effect on order and disposition clause in banlcruptcy. 187, 188 equitable mortgage ..... 227 of market . . . ' _ _ . . 491, 492 of London Money Market on mortgage of public securities . 605 pledge by bill broker . . . 570 of Stock Exchange, seeMoNET Market and Stock Exchange . 516, 524 DAMAGE, See Liens 368, 372 DAMAGES, liquidated, distinguished from penalties ..... 62 DATE. See Bills of Exchange, Promissory Notes, Limitations. -DAY, account 518, 519, u. (h) bank holiday 5, 9 carrying over or contango . . . . . , . 519, u. (h) name ........... ib. settling or settlement ElB, 519, u. (h) DAYS OP GRACE on promissory notes and bills of exchange .... 4, 9 usance to be extended by . 14 life policy 81 none on cheques ......... 20 DEALER. See Jobber. DEATH revokes banker^s authority to pay cheque .... 20 effect of, on cognovit actionem ....... 97 pawn ......... 244 mortgages of lands, see Donatio Mortis Causa, Life Policy, Post Obit, Limitations. INDEX. 591 BBBENTURES. Negotiable Instruments. preliminary inquiry necessary negotiable bills and notes, what are Infants' Kelief Act avoided by . negotiable instrument, nature of depends on statute or custom custom, what suiiicient negotiability cannot be conferred by private paities custom part of law merchant sufficient incomplete negotiable instrument, liability on non-negotiable instrument, estoppel by representa- tions on ...... . assignee of bond takes subject to equities . except where assignor estopped . ^ . . whether by notice or conduct .... debentures purporting to be assignable by statute estoppel by representations, how made 263 ib. h., n. (a) ib. ib., 264 264 ib. ib., 265 265 ib. ib. ib., 266 266 ib. ib., 267 Debentuees in General originated by formation of companies .... 267 definition of ........ . ib. distinguished from mortgages, bonds, and charges . . iJ>. are terminable securities ....... 495 issued by private persons governed by general law . . 267 issued by corporations subject to pecuKar restrictions . ib. must be within borrowing powers of company ... ib. corporation, power of, at common law .... ib. when its contracts required to be under seal . . . ib., 268 ultra vires, doctrine of, modifies powers of corporations . 268 corporations created by special Act of Parliament . , ib. debentures in excess of borrowiner powers ultra iiir'es . . ib. companies created under Companies' Act, 1862 . . . ib, memorandum of association, shareholder's duty to know . ib. the charter of the company . ib., 269 articles of association defines power of directors, how . 269 debentures in excess of powers under memorandum, ultra vires .......... ib. but if only in excess of powers in articles, may be ratified . ib, classification of, mortgages and bonds issued by corporations included ......... ib. no priority inter se ....... , 270 priority over judgments, and claims of shareholders . . ib. bonds do not bind property ib, interest on 422, n. (e), 427, n. (r). stamp on . 450 — 454 reaUsation of 482, 483 Under Companies' Act usually issued by directors under borrowing powers . . ib. form of a mortgage debenture ...... ib., 271 may be bond or promissory note in form .... 271 whether writing under seal can be a promissory note , ib., 272 officer authorised to draw bills and make notes for company 272 debenture, negotiability of, as promissory note ... ib. assignability of, as a chose in action ... ib. 592 INDEX. DEBENTURES— conM»«ed. Under Companies' Act — continued. estoppel on non-negotiable instrument on debentures for debt, due on previous agreement circumstances determining negotiability validity of . . effect of . . . . . . . . power of directors to issue in payment of existing debts to issue at a discount to mortgage debentures not taken up to take up at a discount . charged upon corpus or profits of company " undertaking," to what charge extends book debts ...... call made or determined on . registration of charges afifecting property of company non-registration, penalty on officers for inspection of register by creditors and members non-registration does not defeat charge except of certain ib., 273 273 ib. ib. ib. 274 ib. ib., 275 275 ib. ib. ib. ib., 276 276 ib. 483, 484 276, priority of imperfectly registered debentures over general creditors ........ realisation df, see Actions ...... Under Mortgage Debenture Acts, 1865, 1870, founded on securities registered under Land Transfer Act issued, by what companies ..... conditions of issuing return to be filed in office of Land Kegistry new debentures in lieu of old .... prescribed securities total amount of registered securities . quarterly return of registered securities investments, shares, and debentures . mortgage debentures, for what principal and interest at what time payable how indorsed must be duly sealed, signed, and stamped form of ... . list and register of . indorsement by Land Registrar neces- sary .... no priority inter se no notice of trust receivable by pany or registrar discharge of . . . form of transfer of . . company only bound by transfer from due entry realisation of, see Actions . 482—484 Under Companies Clauses Acts, 1845, 1847. object of Acts 281 Act of 1846, application of ib. 1863, „ *., 282 277 277 ib. ,278 278 ib: ib. ib. ib. 279 ib. ib. ib. ,280 280 281 INDEX. 593 DEBENTURES— o», tinued. Undek CoitrANiEs' Clauses Acts, 1845, lSi7 —contimied. Acts only apply to companies incorporated by special Act of Pai'liament ....... debentures under Act of 1S45, summary proceedings on 1863, Under Act of 18i5 state true consideration to be duly sealed, stamped, and form of mortgage form of bond transfer by deed duly stamped form of transfer registration by company of mortgages and bonds of transfers . no priority inttr se interest, priority over dividends transferable by deed repayment of money secured by .... when interest ceases .... . . receiver, when and how appointed .... right of action, how affected by appointment of receiver Under Act of 1S63 debenture stock, how created ..... priority over shares and stock of company transferable as stock ....... interest on, priority over shares .... no priority of holders inter se . . . . . registration of holders .... certificates of stock holders not entitled to repayment of principal . application of money raised by . receiver, when and how appointed .... Special Sides as to Railway Companies .... Railway Companies' Securities Act indorsement on debentures absence of, not fatal ....... penalties for ........ Railway Companies' Act, 1867 ..... protection of rolUng stock from execution . appointment of receiver or manager .... scheme of arrangement for company in difiBculties proportion of assenting mortgagees, obligees, debenture holders preference shareholders ordinary shareholders mortgagees of leasing company assent of parties not affected unnecessary . debenture holder boimd by scheme although he has obtained judgment ....... confirmation of scheme ..... scheme confirmed avails as special Act of Parliament scheme, printed copies of, company must keep . stay of actions against companies whose railways are partly in Scotland 282 ib. ih. ib. ib. ib., 283 283, 284 284 ib. ib. ib. ib. 285 ib. ib. ib., 286 485 286 ib. ib. ib. ib. ib. ib. ib., 2«r 287 ib. ih. ih. ih., 288 288 ib., 289 289 ib. ib. ih. ib. ib., 290 290 ih. ib. ib. ib. ib. ib. 594 INJ3EX. DEBENTURES— co»- stamp on ... ib,, n., 436, 437 general or special ......... ib. use of ... . *., 42 negotiability of . . . ... 42 forgery of »*• grantor's, liability on . . . . . . ib. evidence of money paid under . ... ib., 43 marginal form of ......... 43 negotiability of ib., 44 for purchase of foreign goods 44 open .......•■•■• ^^ documentary . *^- failure of grantor of . ^5 winding-up of company . . '^■ Circular Notes nature of *"• how distinguished from letters of credit .... ib. letter of indication, what ib. object of ib. form of ^6, 47 stamp on ^^1 G14 INDEX. FAQE LEX loci contractus 15 — 17 solutions ^• fori it>- LIABILITY of agent or broker 492 banker as bailee ......... 357 on deposit receipt 40 charterer, cesser of 352 creditor or trustee of assigned fund 307, 326 granter of letter of credit 42 innkeeper 353, n. (m) pawnee ........... 243 Post Office on money orders 51 principal to indemnify broker ...... 536 purchaser of shares to become transferee .... 531 parties to instruments, see Bills or Exchange, Pkomissoky Notes, Debentures. shareholder, see Monet Mabeet and Stock Exchange, MoETGAGES {Mortgages of Stock and Shares). surety, see Guabantbes. on Stock Exchange, see Money Mabket and Stock Exchange LICENCE to issue unstamped bank note^ ...... 435 deal in stamps 426 act as broker in the City of London 521 paTvubroker ......... 462 LIENS, In Genbeal, definition 327 possession essential to possessory liens. .... ib. in what cases not essential ..... ib. distinguished from mortgage, pawn, assignment, charge . ib., 241 do not transfer property ....... ib. nor give a right of realisation, unless by exception . . 328 may be created by operation of law or agreement of parties ib., 314 lost by substitution of other security ..... ib. general or specific ........ ib. of bill holders, see Rule in Ex Paste Waring . 397 — 402 of equitable mortgagee, see Mortuaobs {Equitable Moi-tgages) 225 —227 under Factors' Act, see Pawn 253 — 264 general, depend on express agreement or established custom ib. classification of ....... . ib,, 329, 485 realization of ... . ... 485 — 6, 89 Of Unpaid Vendor on Keal Pbppebty, Its Nature, equitable ownership transferred by contract of sale . . 329 unpaid vendor's position ..... right to possession and charge on estate .... ib. when he becomes .bare trustee .... right to cancellation of contract ..... INDEX. 615 LIENS — continued. Of Unpaid Vendor on Real Pbopertt — continued. Its Nature — contimted. lien obtains for every part of unpaid purchase money . does not depend on possession .... exists notwithstanding conveyance falsely acknowledg ing payment binds vendee and parties claiming through him . except purchasers for value without notice obtain' ing estate . . . when it binds purchasers without notice may be assigned by parol assignee takes subject to equities .... and should give notice is personal property ...... is creature of equity . . ... On what charged, purchase-money formerly payable out of personal assets when a charge on estate purchased (Locke King's Act) marshalling under old law in favour of creditors, devisees and legatees but not of heirs or next of kin . in case of creditors, applies to bankrupt's as well as deceased's estate devisees, applies in absence of express charge .... legatees, application questionable Effect of Consideration, lien where' consideration is annuity or discharge of vendor's debt or performance of any other given act but not covenant to perform, no lien for payment on uncertain event or where contract excluding lien indivisible e.g., where part consideration money to be received on shares . . . undertalcing to discharge liability principle that covenant excludes Hen . Efect of taking Security, lien may be expressly reserved or renounced renunciation of lien implied by acts and conduct security, effect of taking promissory notes, bills, bonds, and other personal securities mortgages and other securities on property annuity secured by bond — family arrangement . Analogous Lien of Purchaser, Uen of purchaser for deposit or purchase-money obtains for interest and costs of suit .... is in nature of mortgage forfeited by default . . .... extends to sub-purchaser rights of vendor and purchaser, whether public or private Lien against Raihoay Company, enforced by sale and that free from all claims of public . . . does not authorise interlocutory injunction against running trains ..... 329 ib. ih., 330 ib. ib. ib. ib., 331 331 336 361 ib. ib. ib. ib. ib. 332 ib. ib. ib., 333 333 ih., 334 334 ib. ib., 335 335 ib. ib. ib. ib. ib. 616 INDEX. lil'E'NS— continued. page Of Unpaid Vendoe on Real Propbety — continued. I/ien against Railway Gom/pany — continued. nor appointment of receiver 335 though it was formerly otherwise ..... ib., 336 not defeated by deposit and bond under Lands C lauses Act 336 nor deposit in name of trustees ...... ih. Of Unpaid Vendob on Pebsonal Pbopebtt, In General, distinguished from that on real property .... 336 possession, how far necessary ib. lien the same at law and in equity ..... ih. obtains against bona fide purchaser for value without notice ih. except in four instances ....... ib., 337 not affected by transfer of documents of title . . . 337 how far it exists where vendor warehouseman ... ih. may revive on purchaser's insolvency .... ih. presupposes transfer of property ..... ih. documents relating to transfer of chattels .... ib., 338 of title distinguished from other documents . ib. bills of lading, warrants, delivery orders, certificates . . 338 holder of dock warrant preferred to holder of delivery order ib. lien binds sub-purchaser without notice .... ib., 339 Effect of giving Credit, Uen lost by 339 but may revive on insolvency or dishonour of bill . . ih. situation of sub-purchaser ib. Effect of Estoppel. lost by 339 estoppel by conduct ih., 340 estoppel by representation in document of title . . . ib. must be by e^^ress statement, or usage .... 340 on iron warrants .....,,.. ib. application restricted ib. Effect of Factors' Acts, lost under .......... 341 first three Acts had no direct application .... ib. documents of title, meaning of ih. what change introduced by Factors' Acts as to . . . ib., 342 Factors' Act,1877, lien defeated by transferof document of title 342 meaning of document of title same as under earlier Acts ih. priority of title 46., 343 operation of Act confined to dealings between vendor or vendee and third parties 343 vendor has only power of mercantile agent .... ib. vendee has also power of giving title as by bill of lading . ib. effect of this power ........ ih. Effect of Bin of Lading, lost under .......... ih. bill of lading defined ib. usually made out in sets ....... ib. transfer of bill of lading passes property .... ib. lien, how affected by ownership of carrying vessel . . 344 ship named by vendee ib. intermediate carrier does not defeat lien except under agreement ......... ib. exists until vendee obtains possession or transit ended . ib. INDEX. 617 LIENS — continxied. Of Unpaid Vendor of Peesonal Phopebty — continued. Stoppage in Transitu, what and when exercisable ...... 344 iransitus, what and when terminated . ... ib., 345 goods at wharf, warehouse, or port to wait vendee's orders 345 in charge of third party to forward .... ih. to effect stoppage, actual notice to person in control of goods ib. notice ratified, or to shipowner ...... ih. delivery of part of goods, when lien on remainder defeated ih. vendee may anticipate termination of transit . . . ih., 346 carrier cannot prolong transit 346 vendor may stop goods though property never vested in him . ib. when consigning agent may stop ib. right analogous to stoppage in tramsitu . . ib. stoppage does not rescind contract ib. right avails against vendee and persons claiming under him ib., 347 except bond fide purchaser or incumbrancer without notice, to whom bill of lading duly transferred . . 347 pro twnto extinguishment of lien, marshalling ... iii. priority amongst transferees of different sets of bills of lading .......... ih. realization of . 486, 488, 489 In Pabticulab Teades and Peofessions In General, vendors' liens grow out of ownership ..... 348 trade liens founded on possession ..... ib, lost by loss of possession ....... ib. confer mere right to retain ih. may be acquired and held by one's agent .... ib. must not be inconsistent vrith claim set up . . . ih. person exercising, must bear expense of retainer . . ib. lost by taking security for claim ib., 349 e.g., solicitor's lien by security from client .... 349 exist by common law, usage, or agreement . . ib, may be either general or specific .... ib. all possessory, frequently described as common law . . ib. common law distinguished from usage liens ... ib. division of common law liens . . . . ib. Carnera' Lien, carriers either common or private query if private carriers entitled to common carrier's, is specific as warehouseman freighters, on goods landed at wharf right of master on landing at foreign port price of carriage payable in advance . if not demanded cannot be sued for until delivery of goods carrier has special property in goods carried whether lien avails where bailed by wrongful possessor, query carriers by sea, lien for freight to shipowner amount may or may not be specified in bill of lading ib. lien excluded where freight payable after delivery . . ib. or where carriage to be paid for before arrival ih. ih. ib. 350 ih. ib. ih, ih, ih. ib. ib. 361 618 INDEX. LIENS — contimied. In Particular Trades and Professions — continued. Oa/rriers' Lien — continued, lien excluded where goods not safely carried charter may transfer either ownership or only use of ship . where ownership transfeired shipowner has no lien , where use transferred shipowner has lien against charterer and holder of bill of lading (for freight or hire) . master's lien for charterer ....... bill of lading incorporating charter-party .... for dead freight, when valid against holder of bill of lading cesser of chajrterer's liability Innkeepers' Idem, goods must come into possession in relation of innkeeper and guest ......... on goods ef third parties ...... innkeeper, who is distinguished from lodging-housekeeper liability of . . . . . . . ( eating, coffee, publichouses, taverns, &c., distinguished from inns ......... lien is specific but obtains for every item of debt possessory at common law ..... and forfeited by sale, or parting with possession Innkeepers Act, 1878, innkeeper empowered to sell . but not until goods six weeks in his possession . nor for more than what common law lien gave retainer one month's notice of sale to be advertised . disposition of proceeds ..... Liens by Usage of workman, specific and possessory .... agistment does not confer general, conditions and evidence of . of auctioneers, bankers, insurance and bill brokers, &ctors, warehouse and dock keepers, wharfin- gers, packers, calico printers, solicitors . on proceeds of goods ..... sale not authorised by of factor, on bankruptcy of principal . of insurance brokers, on policy moneys . of warehouse and dock-keepers, wharfingers and packers, mere retainer Of Banker expressly excluded ....... part of Law Merchant ...... gives right to realise and apply funds cheques honoured at branch where account kept right of set off between different branches . does not extend over documents deposited, when liability as bailee funds specifically appropriated on exchequer bills or bonds appropriation, how far effectual ..... only between principal bank and customer •.by opening trust account realization of . 351 ib. ib. ib. ib., 352 852 ib. ih. ib. 852 ib. ib., 353 353 I., n. (m) ib. ib. ib., 354 354 i6. iJ. ib. ib. ib. ib. ib., 35S 355 ib. ib. ib., 356 356 ., n. (e) 403 356 ib. ib. a. 228, 367 ib. ib. 72 357 ib. ib. 486 INDEX. 619 LIENS — continued. In Particular Trades and Professions — continued. Of Solicitor, division of ib., 358 on boohs and documents 358 — 360 general 358 as against bankruptcy or liquidation trustee . . ib. where estate administered by court .... ib. not against mortgagee ib. against transferee of shares in liquidating company . ib., 359 against mortgagor 359 over moneys received for client ..... ib. over alimony in matrimonial suit .... ib. only for adequate security ...... ib. delivery up of papers, order tor ib. production of documents in legal proceedings . . ib. only binds client's rights ...... 360 not on will ......... ib. of town agent ........ ib. forfeited by taking security or becoming trustee . . ib., 349 by discharging himself, but not by being discharged . ib. discharge by banlcniptcy ib. for claim barred by Statute of Limitations . . . 363 on fiiiits of judgment, decree, or order .... 360,361 specific ......... 360 not an equitable assignment or trust .... ib. protected against collusion of parties . . . 361 compromise, when defeated by .... . ib. on costs ordered to be paid by defendant ... ib. may be assigned ib. priority of assignee ....... ib. not barred by Statute of Limitations .... 363 ore 'propeirty charged under 23 tfc 24 Vict. c. 127 . 361 — 363 s. 28, 23 & 24 Vict. o. 127 361, 362 interpretation of . . . . . . . . 362 nature of property ....... ib. inciunbrance removed ib. infant or married woman's title established ... ib. not against property of third persons .... ib. not of easement ........ ib., 363 where suit compromised .... . 363 second suit, fund in . ib. assignment of special fund does not affect . . . ib. priority over mortgage or garnishee order ... ib. made in division to which suit attached . . ib. barred by Statute of Limitations .... ib. Maritime Liens, In General, definition of 364 not founded on possession or property .... ib. enforced by action in rem ....... ib. resemble hypotheca of Roman law ib. extent of ib. rules of Admiralty division as to ib. attributes of . . . . • ib., 365 extinguished by payment, acceptance of bail . . . 364 620 INDEX. LIENS — continued. Maritime Liens — continued. In General — continued. extinguished by judicial sale, loss, or destruction agreement to postpone payment, want of diligence not affected by mere delay, non-judicial sale agreement to refer, to receive certain sums for receipt given in ignorance, notice of sale release of owner ..... holder of entitled to personal remedy as well classification of for necessaries to foreign ship but not to English ship, even against purchaser vrith notice realization of . . . . Bottomry and Respondentia, definition of constructive total loss not applicable to . . . conditions of validity, necessity, failure of credit, oommuni cation, risk, writing ....... master or owner may contract, where not valid for master's debts, nor past debts for past debt and present advance, when valid . respondentia only affects cargo ..... Salvage, meaning of . . . subject must be saved conditions of lien lien may be excluded by agreement seaman's agreement, when binding agreement enforced unless clearly inequitable circumstances affecting value of . amount in discretion of judge of first instance relation of value of property salved for saving life life, priority of payable out of any property saved or out of Mercantile Marine Fund generally captain and those on board salved ship have no claim ........ her Majesty's ships have no claim for rights of commander and crew, consent of Admiralty claim, how prosecuted within Cinque Ports elsewhere within United Kingdom . when in Admiralty Division of High Court receivers of Admiralty droits, rights to receive payment, or detain ....... action to recover .... Damage, in what cases .... . . on ship and freight, but not cargo regulations for preventing collisions . construction of regulations ..... liability of ship ....... liability of shipowner limited according to tonnage limited where proceedings by Board of Trade when Uf e lost exonerated by compulsory pilotage ..... even within territory of foreign state, or when ship in tow 365 ib. ib. ib. ib. ib., 366 486, 487 366 ;*., u. (y) ib. ib., 367 367 ib. ib. ib. 368 368 ib. ib. ib. ib. 368, 369 369 ib. ib. ib. ib., 370 370 489 ib. ib. ib. 371 ib. ib. ib. ib. 372 INDEX. 621 LIENS — continued. Maritime Libns — continued. Damage — continued. no exemption where pilotage voluntary action to recover .... Wa:ges, sailors' or masters' sailors' right, when it commences .... not dependent on freight ...... cannot be barred by stipulation ..... forfeited by lo.ss or capture misconduct, desertion, or indolence . not by sickness nor by desertion from illegal enterprise when rateable amount due ...... not exceeding £50, sued for before justices of the peace costs in Admiralty Division ..... master's for wages and disbursements should furnish accounts . action to recover . ..... Pilotage, voluntary or compulsory ... . . compulsory amount of charge, how fixed . master bound to accept services of licensed pilot when pilot entitled to salvage Towage, lien for atnount agreed upon when towage converted into salvage action to recover .... Priority for benefit conferred . rank in inverse order, except wages for reparation for wrong done rank in direct order . as between benefit and reparation Miscellaneous Liens, division .... by statute or agreement of judgment creditor on land on security .... equitable, standing by LIFE conditional gift . breach of trust . analogous to vendor's lien on real estate estate, mortgage of, see Mortgasb {^Mortgages of Freeholds) right of judgment creditor against voluntary settlor of lien on, by remainderman for interest paid off 372 489 ib. ib. ib. ib. ib. ib. ib. 373 ib. ib. ib. ib. ib. 489 ib. 374 ih. ib. ib. ib. 489 ib. ib., 375 ib. 375 ib., 376 91 315 376 ib. 377 ib. 377 119—141 395 376 LIFE POLICY In General, definition of contract premium 77 ib. 622 INDEX. LIFE VOhlOY— continued. In Genebal- definition o£ assurer or insurer assured or insured risk under Companies' Eegistration Act, 1844, by deed signed by two directors Act, 1862, need not be by deed Life Assurance Acts, 1870 — 1872, govern formation of future companies and winding up of existing companies form of ... . material parts of subject of donatio mortis causd interest on ... stamp on . Dbsokiption or Pabties must contain names of all persons interested on life of married woman void for not naming husband party must be described as interested The Proposal, what constitutes f onus basis of contract nature of contract of insurance unintentional mistake fatal premiums, when recoverable representation distinguished from warranty indisputable policy ...... defeated by wilful misrepresentation or fraud . Time poe which Contkaot in Foeob may be for any given period .... liability of company from certification of death . from which, time under Statutes of Limitation runs Annual Renewal by payment of premium within days of grace , otherwise forfeited Avoidance of Policy by going beyond Europe . or entering into military or naval unchaUengable policies, what by felonious death unless voluntarily assigned subsomption op dieectoes . Insueable Intebest on own policy is indefinite on nominee policy limited . means a pecuniary interest as between creditor and debtor trustee and cestui que parent and child devisee and testator heir and ancestor PAGE 77 ih. ib. ih. ib.. 78 ib. 78,79 79 416 423 455, 456 ib. ib. ib., 80 80 b., 83, 84 ib. ib. ib. ib. , 81 81 ib. 81 ib. ib. ib. ib. ib. ib. ib., 82 77,82 82 ih. ib. ib. ib. ib., 84 80 ib. INDEX. 623 LIFE POLICY— coniinwerf. Insdrable Interest — continued. as between next of kin and relative husband and wife under Married Women's Pro- perty Act what polioiea within appointment of trustees of must exist at time contract effected . but need not continue .... no money In excess of, recoverable even where there are several policies absence of, avoids policy only against insurers father preferred to estate of deceased son . Classieioation of Polioib's, own and nominee ordinary endowment survivorship annuity participating and non participating PAETlClPATINa POT.tCIlS assured under shares in profits . bonus, application of .... follows nature of interest in policy . declaration of, confers definite right apportionment of, from surplus does not render holder a partner Assignment of Policies assignable at law since 1867 ...... under Policies of Assurance Act, 1867 written notice of, must be given . . . . priority conferred by . . . , iond fide payment before, valid place where given to be specified in policy acknowledgment of, to be given necessary to confer equitable title . acknowledgment not conclusive on defec- tive assignments .... what sufficient before statute must be absolute no particular form of may be in writing under or not under seal in form given by Act .... usually by deed by surrender and regrant objection that it may be ultra vires legal mortgage created by priority between assignor's trustee in bankruptcy and other 80 ib. ih., 83 83 ib. ib. ib., 8-1 84 ib. ib. ib. 82 84 ib., 85 85 ib. 85 ib. ib. ib. ib. ib. ib. ,87 ib. 85 ib. ib. ib. ib. ,87 (d) 87 87 ib. (b) ib. ib. ib., 86, n. 86, ib., n. 87, trustee no longer entitled creates relation of creditor and debtor does not empower company to pay money into court 88 ii. ib. 624 INDEX. LIFE VOUOY— continued. Assignment of Policies — continued. unless there be a trust ....... or assignment under Judicature Act petition ot assignee under Trustee Relief Act gives juris- diction to allow costs FAQE ib., 326 Mortgage of Policy, conditions on which companies make advances ... 87 legal, by assignment ib., 88 equitable, by deposit ........ ib. priority of successive mortgagees determined by notice . 88 equitable mortgagee having actual deposit . ib. interest on ......... . 424 realization of 481 As COLLATEEAL SECURITY for payment of a bill ....... 386, n. (k) for debt 403—407 delivery up of, in consideration of payment of probate ....;.., 417 LIMITATIONS, STATUTES OF generally, see Collateral Securities affecting mortgages of lands, see Mortgages simple contracts generally . bank notes ..... banker's deposit receipt notes bills and notes payable on demand bonds . . 61, 382—384 131—141, 144-146, 148, 149, 382, n. (u) 382—384 judgments . life policy . recognizances solicitor's lien specialties . 21 Jac. I. 0. 16 . 9 Geo. IV. c. 14 3 & 4 W. IV. ^. 27 . c. 42 . 7 W. IV. & 1 Vict. 19 & 20 Vict. li. 97 24 & 25 Vict. c. 62 36 & 37 Vict. o. 66 37 & 38 Vict. c. 57 28 131- 90, 141, 144- ih, n. (b), 61 131, 382- . 61, 132—141, 40 •384 131 382 81 108 136—141, 61, 382—; 146, 148, 149, 382, n, 131, 136—141, 132, 133, 136—: . 61, 135, 134, n, 135—: 382 384 ib. (u) 382 141 382 108 (i) 141 LIMITED guarantee, see Guarantees liability of shipowner for damage shareholder under Companies Act . 106, 107 371 503 LIQUIDATED •damages distinguished from penalty demand in money action for, see Actions (Procedwre on Specially Indorsed Writ). 62 INDEX. 025 LLOYD'S BONDS, ^^"'^ 'alt)-a vires, what instruments are ...... 295 loan notes of railway companies ;j. Cheap Trains Act, prohibition by ib., 296 register of loan notes imder . . . . 296 loan notes, whether void under . . ib., n. (d) does not prohibit securities for debts incurred ib., 297 definition of .....,.., . 297 form of jj,^ 298 validity of 298, 299 presuppose existing debt 298 assignee of, talces subject to equities ih,, 299 statement of, in balance sheet 298, n. (f) evidence as to legality of ib,, n. (h) invalid for present advance 299 agreement for .......... ib. property of corporation may be indefinitely charged by . . ib. subject to particular statute governing issuing body ... ib. release of equities on ........ ib. mode of enforcing ......... 485 LOAN, temporary, raised by exchequer bills, bonds, and treasury bills . 65 funded or unfunded 496, 497 foreign, see roBEiBN Government Securities. raised by debentures, see Debentures. under Pawnbrokers' Act, see Pawns .... 245 — 251 note, see Lloyd's Bonds. as consideration, on guarantee . . ... 104 I custom affecting bill brokers . . . . . . . 510 scale of pilotage charges 374 LOCKE KING'S ACT AND AMENDING ACTS, text of 541-543 construction of 126 — 129 effect of, on marshalling 331 LODGERS' GOODS PROTECTION ACT 179 LONDON banks' right to issue bills or notes 30, 37, n. (h) Gazette, notice in, of payment of exchequer bills ... 67 under Railway Companies' Act, 1867 . 289, 290 evidence of regulations as to Post Office orders . . 52 city of, usage of bill brokers 510, 511 licence to practice as broker ...... 515 Stock Exchange, see Money Market AND Stock Exchange . 513,537 on forged cheque, falls on whom 21 on fraudulently filled up negotiable instrument . . . 265 constructive total, does not apply to bottomry . . . 366, n. (y) LOST negotiable instrument, action on 411 right of hon&fide holder to . . . 265 S S LOCAL LOSS 626 INDEX. PAGE JjOST-^continued. bank note .... .... . 27 cheque ..... ..... 26 exoliequer bills or bonds 168 LUNATIC, name of, furnished by jobber as transferee, insufficient . . 525 MACHINERY, removal of, under Agricultural Holdings Act .... 173, 174 comprised in bill of sale, see Teade Machinery. MAINTENANCE, assignment tainted by, when not upheld ..... 305 MAKING A PRICE ON STOCK EXCHANGE .... 514 MANAGER under Railway Companies' Act, 1867 289 elected by shareholders of London Stock Exchange . . . 515 MANUFACTURED GOODS exempted from distress ........ 179 prohibited to be taken in pledge by pawnbroker . . . 248 MARGINAL LETTER OF CREDIT, See Lettebs oe Credit . . 43, 44 MARINE, See Insdranoe, Mekoantile. MARITIME interest ........... 364 liens, see Liens 364 — 375 actions on, see Actions and other Remedies {Liens) 486, 487, 489 MARKET, meaning of .......... 491 overt, effect of sale in 252 See Money Market and Stock Exchange. MARRIAGE, as consideration for settlement 168, 190 — 197 MARRIED WOMAN, name of, furnished by jobber as transferee insufficient . . 525 MARRIED WOMEN'S PROPERTY ACT, provisions as to life policies 82, 83 modification of Bankruptcy Act as to fraudulent settlement by 191 INDEX. 627 PAGE MARSHALLING, See CoLLATBEAL Secubities 394 397 m case of vendor's lien on real property . ... 331, 332 personal property . . . . 347 MASTER AND SERVANT. effect of relation on assignment 305 on charter of ship 351, 352 MASTER OE SHIP, lien of, on cargo 35O, 352 priority of, over mortgages 152 for wages ' , . . . 372 authority of, to enter into bottomry or respondentia . . . 366, 367 MASTERS IN HIGH COURT, applications to 100, 466 registration of judgment securities by, see Judgment Secdkities. bills of sale by, see Mortgages {Bills of Sale). MEMORANDUM of association, eflfect of, see Debbntubes ..... 268, 269 accompanying equitable mortgage ...... 224, 225 registration of . ib., 239, 205, n. (g) MERCANTILE Law Amendment Act . . . 104, 105, 133, 135, 382, 407, 408 Marine Fund 368 MERCHANT SHIPPING ACT, See MowidAaKS (Mortgages of Ships) . . . . 150-154 Liens {Maritime Liens) 364^ — 375 MERGER, general operation of, see Collateeal Secubities {Merger-) 386 — 390 by bond 60 by judgment 89 effect of, on interest 423 MINOR, See Ineant. MISCELLANEOUS. subject of Book III 378—537 liens, see Liens . 375 — 377 MISDESCRIPTION in bill of sale 161 effect of, on policy 80 MISREPRESENTATION, See Estoppel. MONEY as a commodity 490 — 493 sale for 519 s s 2 628 INDEX. MONEY MARKET AND STOCK EXCHANGE, Preliminary Observations. securities for money as medium of exchange, or as a com modity vii, possess, similar legal attributes . subject of present chapter securities as a commodity buyers and sellers, how brought together . factor or broker, what constitutes market, meaning of del credere agent, what agency, rule of law as to . custom of market, when binding broker, how authorised by usage of market liability on contract .... none where character of agent stated except by particul'ar custom . money and securities for money bought and sold as commodities ....... division of subject ...... other viii. 490 ib. ib. ib., 491 491 ib. ib. ib., 492 492 ib., 493 492 493 ib. Money and Seoueities as Commodities. Discount and Investment Secv/rities. money employed to produce profit or income securities for money, function of . . . discount distinguished from investment securities investment securities are either private or public terminable securities, what are .... bond or mortgage perpetual securities, annuities, rent charges Public Securities in General are terminable, as bonds, debentures . or perpetual, as stocks or shares .... signifying both title and subject of investment . investment in public loans, or in capital of public body loans are funded or unfunded .... funds, meaning of stock and stocks, meaning of ... . distinguished from paid-up shares bequest of " railway shares " passes stock . Tlie British Funds. funded debt includes consols, &c. unfunded debt includes exchequer bills and bonds, treasury bills ....... title of stockholder in funded debt, how constituted transfer of stock. National Debt Act, 1870 closing of bank books ...... stock certificates with coupons .... trustees cannot hold dividends when payable dividend warrants, transmission through post subject to Crossed Cheques Act Bank of England, liable for stock as depositee . not liable without notice of claim or trust compelled to reinvest, where forgery power of trustees to invest in exchequer bills, &c. and 494 ib. ib. ib., 495 495 ib. ib. ib. 496 ib. ib. ib. ,497 497 ,498 498 499 ib. ib. ib. ib., 500 499 500 ib. ib. ib. ib. ib. ib. INDEX. 629 MONEY MARKET AND STOCK EXCHANGE— ce of contract to deliver stock not en forced ..... "options," "puts," "calls" whether within Betting Act, query 109. 531 532 ih. 531, 532 532 533 53i ih. ib. ih. ib., 535 535 ih. ih. ib. ib. ib., 536 536 ib. ib. 637 ib. MONEY SBCtrRITY, sense in which term used . See Personal Security, Seoukitibs. MONTH, notice of one, under Innkeeper's Act 354 after twelve months, inland post office order void ... 53 three months, French post office order not payable without authority 55 payment of exchequer bills, within twelve months ... 67 MORAL KIGHT, conferred by foreign government security ..... 73 MORTGAGES, General Principles, definition ....... classification ...... relative rights of mortgagor and mortgagee equity of redemption ..... how extinguished sale, application of proceeds 109, ih. n. (a) 109, 110, 159 110 ib. Ill ih. INDEX. 633 MORTGAGE S— continued. General Pkinoiples— coniinaecJ. " once a mortgage always a mortgage ' ' mortgagee's right to retain assignment of debt subject of donatio mortis camd what constitutes a mortgage distinguished from debentures liens pawns nature of, as investment is a security for money effect of, on vendor's lien how extinguished by substitution- cancellation of another security ib., 113, reconveyance mortgagee bound to retransfer property on due payment 409, cannot alienate security from debt right of, to sue on implied covenant all his securities for future advances redemption, right to priority of several tacking, nature of presupposes legal estate. consolidation, nature of effect of notice priority by notice stop order specific performance, when granted purchase of equity of redemption by mortgagee under power of sale opening of foreclosure 117, 392, interest, reservation of right to concealment of incumbrances soUcitor'a Uen against mortgagor stamps on actions on, see Actions 472- under Companies' Act Clauses Acts Mortgage Debenture Acts Commissioners' Clauses Act J of public securities, see Monet Market and Stock Ex- change 505, 506 MOBTOAGES OF EeBBHOLDS of immoveables classified 119 form of . . . covenants on stipulation for possession execution of registration of by deed abstract of title on expenses on and mortgagee 111 VI, 112, 117, 358, 450— -482, 111 415 ib. 267 327 241 495 , vii 334 116 313 418 112 410 313 391 392 112 ib. 113 114 114 ib. 115 *. ib. 116 116 *. . ,(n) 117 422 118 359 454 ^see Debentures. . ib., 120 120 ib., n. (e) ib. 634 INDEX, MORTGAGES— co»i!i™ed. MoKTGAGES OP Feeeholds — continued. under Land Transfer Act ...... general principles governing statutory powers to sell and give receipts . appUoation of proceeds of sale conveyance of estate on . insure ...... obtain appointment of receiver mode of appointment powers and duties of receiver . mortgagor tenant at will or at sufferance . ejectment of, without notice in possession, rights of ... to rents . distress cut timber . bring actions for time certain ...... mortgagee, when entitled to six months' notice or interest . ib., payment to heir or executor of heir of, when a trustee .... re-conveyance by .... . or real or personal representa tive of . under Building and Friendly Societies' Acts account against ..... when annual rests allowed expenses allowed for repairs costs in defending title not for general improvements not permitted to commit waste bound by leases before but not after creation of mortgage unless adopted .... title of, to rents mortgage debts formerly payable out of personal estate except where not contracted by deceased . . . ib. or implied by law or created by surety Locke King's Act and Amending Acts, text of ........ . 541 lands in mortgage, or subject to- vendor's lien charged by heir or devisee of mortgagor not entitled to exoneration in absence of contrary intention rights of mortgagees unchanged 17 & 18 Vict. c. 113 applies to copyholds . equitable mortgages not to vendor's lien leaseholds land converted rateable liability of realty and per sonalty under 120 ib. .,121 121 ib. 120 ., 121 . 121 ib. 122 ib. ib. ib. ib. ib. 123 123 124 ib. ib. ib. ib. 126 ib. ib. ,126 126 ib. -543 126 ib. ib. 127 ib. INDEX. 635 MOUTGAGrES— continued. MOBTGAOES OF FREEHOLDS — Continued. Locke King's Act and Amending Acts — continued. 17 & 18 Vict. 0. 118, contrary intention under . 30 & 31 Vict. u. 69 extends to vendor's lien under will but not on intestacy will made before 1868 . but not to non-testamen- tary document 40 & 41 Vict. c. 34 extends previous legislation . to lands of every tenure . equitable charges on intestacy limits meaning of contrary intention general effect of, on vendor's lieu What passes under, fixtures annexed to trade profits and goodwill . trade machinery, registration of Equity of Redemption, forfeiture at common law . . . . is an actual estate ... . . descends as other freeholds is subject to dower curtesy . entail .... payment of debts . lost by concealment of incumbrance . except in case of equitable mortgages . lapse of time under Statutes of Limitation Statutes of Limitation, action on covenant under seal 131 132, by mortgagor for land mortgagee for money . land time for bringing, extended by disabilities .... acknowledgment of title part payment express trust for arrears of rent or interest . under Real Property Limitation Act, 1874 reduced to twelve and six years limitation as to disabilities express trust . accrues, from what period to recover interest in foreclosure suit redemption on covenant . against mortgagor's heir where prior incumbrancer rules in equity, as to summary of law ..... realisation of, see Actions ih., ib.. 131, 136- 132, 135— 132, 136—: 133, 136 133- 133, 136- 131, 134— 132, 136- 134, ib., n. (i), 135- 131, 135—: 135,140, 472- 140, -480, 128 128 ib. ib. ib. 129 ib. ib. ib. ib. 431 ib. ib. 130 130 ib. ib. ib. ib. ib. ib. 131 -141 141 141 141 141 141 141 141 135 141 ■141 141 ib. ib. 135 136 ib. 137 ib. ib. ,138 138 141 489 636 INDEX. MORTGAGES— con«m«ed. MOBTGAGBS OP LEASEHOLDS, created by demise or assignment assignee of lease liable on covenant: by way of underlease . deed, when necessary . form of . . . abstract of title on under Land Transfer Act principles governing . registration of statutes of limitation affecting special provisions lessor's power to eject . realization of right of reversioner mortgagor estate acquired by mortgagee under MOBTGAGfiS OF CoPYHOLDS created by conditional surrender mortgagee abstains from taking admittance which is compulsory only by special custom title of, relates back to surrender deed containing terms of transfer of estate by vesting order not within Land Transfer Act . principles governing . registration of, not necessary of leases advisable entry of satisfaction of, on rolls . statutes of limitation affecting . whether time runs from surrender or admittance .... heir of tenant barred by lord's seizure Mortgages of Ships governed by Merchant Shipping Act . registration of British seagoing vessels modes of ..... . Sy Direct Mortgage, form of execution of registration of . assignment of transmission of mortgagee's interest by death, bankruptcy or marriage . effect of mortgage registration . taking possession mortgagee, when entitled to freight . liable for ship's engagements entry of discharge of mortgage cannot be revived priority of master's lien over mortgagees over material men 142 ib. ib. ib., 143 143 ib. ib. ib. ib., 144 144—146 ib. ib. 472- 146 ib. •480, 489 147 ib. ib. ib., 148 148 ib. ib. ib. 149 ib. 150 ib. ib. ib. ib. 151 ib. ib., 153 ib. ib. 152 ib. ib. ib. ib. INDEX. 637 MORTGAGES— co»«m«ef«. MoEiGAOES or Ships— continued. By Direct Mortgage — continued. freight, definition of right of mortgagor to enter into engagements . mortgagee in posBession, when liable for necessaries equites enforced against . priority of, determined by registration power of sale by . . how far an owner when registered not affected by act of bankruptcy by mortgagor . . Under Mortgage Certificate, nature of . for what places granted particulars to be stated to registrar forms of .... . priority of discharge of ... . 152 ib. 153 ib. ib. ib. ib. ib.. 154 ■ 154 ib. Mortgages of Stock and Shares in Companies effected by transfer on books of Bank of England or register of shareholders . and delivery of warrant or certificate transfer of bank stock .... by proprietor or person authorised under power of attorney .... agreement specifying terms of mortgage . transfer of shares tmder Companies' Act . by share warrants .... effect of registration ....... liability of equitable mortgagor ..... registered mortgagee ....... satisfied mortgagee ....... retransfer on discharge of mortgage . bonus, profit, or loss, to whom it accrues liability for calls effect of interposing trustee .... sale substituted.for foreclosure power of attorney to sell does not authorise mortgage distringas and order restraining transfer loan of stock or shares with bond to replace measure of damages on breach of bond ib. ib. 155 ib. ib. ib. ib. ib. 156 ib. ib., 157 156 ib., 157 157 ib. ib. ib. ib. ib., 158 158 ib. ib. Bills of Sale, mortgages of personalty, classification of . . . 159 definition of ........ , j'j writing, how far necessary j-j form of ib., 160 inventory or schedule to 160 161 rules for ascertaining operation of schedule . . . igj right of grantor to collateral policy ..... 407 actual property only transferable at common law . . jft. maxim of Lord Bacon ....... jj after-acquired property transferable in equity . . . ib., 162 equitable assignment distinguished from power to seize . 162, 163 638 TNDEX. MORTGAGES— coniOTwed. Bills of Sale — continued. division of, into — 1. Absolute ; 2. Conditional . 163 power to enter roust be reserved .... . ib.,16i " to seize and sell on demand " 164 payment by instalments ... . . ib. persons who may defeat ...... 165 Validity as against Cfranter's Oreddtm's, fraudulent, what ib. ionafides ib. badges of fraud . . . ... 166 possession by grantee . ib., 157 fraud, what constitutes 167 voluntary settlement .... . . . ib., 168 valuable consideration, what . 168, 169 extent of indebtedness 169 preference of creditor, allowed ib. fraudulent grant, by whom impeachable . a., 170 . Validity as against Persons having a Rii/ht of Distress Against Grantor. distress, what subject to 170 privileged articles .... . . . ib., 171 things annexed to freehold 171 fixtures . ■a.,172 removal qf, generally ...... 172 removal as between landlord and tenant 173 agricultural ib. under Agricultural Holdings Act ib., 174, 175 trade 175 fixtures, ornamental 176 time within which removable . ib., 177 things in custody of the law 177 goods seized in execution ib. fraudulently removed . . . . . iJb., 178 goods of stranger 178 JoniJ^e assignee ib. beasts of the plough, instruments of a man's trade . ib., 179 landlords of third persons ... 179 Lodgers' Goods Protection Act .... ib. Validity as against Grantor's Trustee in Banhruptcy, bankruptcy adjudication by registrar . - . . 179, 180 acts of . 180 filing of liquidation petition 181 relation of title ib. property divisible amongst creditors . ib., 182 traders and non-traders, division of . 182 assignment of property, when an act of bankruptcy . 182-184 reputed ovmership of bankrupt 185—187 things excepted from 187 debts in course of trade .... . ib.,188 property ante-nuptially settled . ib. chattels bequeathed ib. partnership property ib. property subject to custom of trade ib. goods entrusted to mercantile agents . ib. appropriated ib. INDEX. 639 191, ib.. MORTGAGES— conMmted Bills of Sale — continued. Validity as against Grantor's Trusteein Bankruptcy— continued. property in auter droit consent and permission of true owner ante-nuptial settlement settlements by traders, when void effect of Married Women's Property Act fraudulent preference . pressure .... act of bankruptcy, person with notice of when dealings with bankrupt, valid seizure and sale in execution seizure secures creditor, when . judgment for over £50 notice of an act of bankruptcy . Bills of Sale Acts, text of Act of 1878 registration under steps to procure . attestation . renewal satisfaction, entry of meaning of " biU of sale " . "personal chattels" . " apparent possession " biUs of sale requiring registration, what ar under the Act of 1854 . . , under the Act of 1878 personal chattels, what included in under the Act of 1854 . under the Act of 1878 . general fixtures and growing crops trade machinery .... other machinery used in, or attached to any factory appa/rent possession, what constitutes registration under Act of 1 854, time for de facto occupation of premises goods bailed advertised for sale formal possession order and disposition . choses in action . 'registration under Act of 1878, time for order and disposition . description of parties, what sufficient under Act of 1854 of profession or occupation of residence. attesting witnesses clerical error rectification of material error evidence of registration under Act of 1878 attestation .... copy registration, whether always necessary 188 ib., 189 189, 190 190, 191 191 192, 193 . 192, 193 . 193, 194 194, 196, 197 . ib., 195 195, 196 196 197, ib., n. (x) 209- 544—550 198, 547, 648 ib., 548, 549 199, 547, 548 . 198, 199, 548 . 199,200, 549 . 200, 201, 544, 545 . 201, 545 ib. 201—206 201—203 203—206, 544—550 206—213 206—209 213, 545, 546 . 209, 210 210—212 . 212, 213 213—216 213 ib. 214 ib. . ib., 215 215 ib., 546, 547 ib., 216, 550 216- 219 216—218 216, 217 217 218 218, 219 ib. 547, 548 218, ib. 219 640 INDEX. M.0B,TGAG:ES— continued. Bills of Sale — continued. Bills of Sale Acts — continued, general effect of Bills of Sale Acts. Ireland subject to separate Act . under Acts of ] 854 and 1866 registration, no new security by . nor original priority by . . . execution against, or bankruptcy, of grantor assigned bill, renewal of registration . successive renewals of bill of sale as against execution creditor as against trustee in bankruptcy . under Act of 1878 . . . . registration, priority by ... . defeats order and disposition clause successive renewals of bill of sale consideration to be stated computation of time rectification of register rules for purposes of Act actions on . stamp .... 219, I., (d) 219—221 219 ib. . ib., 220 220 ib. ib., 221 ib., 221, 547 . 221, 222 . 221, 548 ib., 547, 550 ib., 222, 547 222, 546, 547 ib., 550 . ib., 549 . ib., 550 481, 482, 489 439 Equitable Mortgages In General, definition of .... . property, what subject of , under Land Transfer Act . certificate of shares, what it is . duty of mortgagee to inquire not within Statute of Frauds memorandum not necessary binding if used imposes registration of annuity . by company . . in favour of its officers documents, deposit of, what necessary direction to third party vmder Bankers Act (Ireland) lien conferred by ... . where conditional mortgage ' where prior incumbrance , not against purchaser without notice where fraud of mortgagor's agent against official liquidator of building society equitable mortgage by devisee as against assets for future advances, evidence of general balance, custom of trade . banker and customer . . . . equitable mortgagee may call foe legal mortgage or foreclosure or sale decree for foreclosure . redemption, action for . 223 ib., 224 224 ib. ib. ib. ib. ib. ib., 225 225 ib. ib. ib. ib. ib., n. (1) ib., 226 226 ib. ib. ib. 227 ib. ib. ib., 228 228 ib., u. (n) *., 229 INDEX. 64,1 228, 11. (n), 229 229 ih. ib. 315 424 425, 431 482, 489 472. MORTGAGES -conHnued. Equitable Moktgages — continued. In General — continued. redemption action, effect of dismisFa,! of fixtures and goodwill pass by ... , lease, mortgngee of, not liable to take assignment proceeds, application of ..... assignee of debt with interest on mortgaged policy .... not within Stamp Act . ^ . actions on ..... . of public securities, see Money Market and Stock Ex CHANGE 505, 506 Prionty by consolidation 229 230 avails where all charges equitable 230 by tacking, presupposes legal estate H, time when equities equal jj. a matter of circumstance .... . . jj. of mortgage over judgment 92 by notice, effect of ....... . jft. on tacking . j6., 231 to trustee of fund 232 to purchaser for value ih., 233 actual, what ...... 233 must be from interested party . . . ib. constructive, what ib. of lease is notice of its contents . . . ib. of charges is notice of all charges . . ib. of joint ownership ..... ib. of contents of deposited documents . . ib., 234 through solicitor or agent .... 234 must be in same transaction or communioLited ib. does not apply where agent acts fraudulently 235 what is fraudulent within the rule . . iJ. ■ suppression of deed ib., 236 positive evidence to principal . . . 236 mortgagor solioitor for mortgagee . . ib. by possession of legal estate ib. title deeds, inquiry for . .^ ib., 237 negligence in parting with .... 237 possession of as between equitable mort- gagees ....... ib. of equitable rdortgagee over judgment creditor . . ib. where mortgagor makes himself trustee .... ib. by registration of assurances of lands .... 238 furnishes evidence not title ... ib. does not protect against actual notice . ib , 239 which may be imputed through solioitor . 239 bond fide inquiry for deeds .... ib. equitable mortgages when within Acts for ih., 205, n. (g) tacking as against registered mortgagee . ib. of title to land, ships, stocks, or shares . ih. equitable interests protected by notices . ib., 240 priority by notice 240 T T 642 INDEX. PAGE NAME DAY 519, n. (h), 520 NATIONAL DEBT, constitution of ......... . 499 Act ib. NECESSARIES supplied to ship, when lien for exists 365, 366 loan to infant spent in . • 298 NEGLIGENCE. See Estoppel, Gross Negligence, Laches. NEGOTIABLE instruments generally, see Debentures .... 263 — 267 eSFect of transfer ....... 314 may become mere assignable choses in action . 312 bill an exception to non-assignability of choses in action . . 301 pledge of, see Monet Market and Stock Exchange 509 — 511 promissory notes ......... 5 bill or note debt extinguished by negotiation of . . . 392 crossed cheque .......... 25 effect of adding " not negotiable " . 24, 25, 539, 540 letter of credit 42 — 44 exchequer bill . 71, 72 bond ... ..... 71 treasury biU 71, 72 Indian Government bond . ...... 72 foreign government security . . . . . . . 74, 75 stock .501 securities subject of pawn ....... 243 public security, mortgage of 505, 506 debenture 272, 273 I O TJ is not ... 2 post of&oe order is not 58 NEW exchequer bills . . 68 three per cents 498, 450 NOMINEE, poUcy 81, 82 on Stock Exchange S26, 527 NOTE, See Contract, Loan, Promissory Note. of hand, see Promissory Note. NOTICE generally, see Mortgages [Equitable Mortgages) . 230 — 236 priority by, generally, ibid il,,^ H5 INDEX. 643 306—311, 330, 331, 336, 338, 230-236 of 253, 254, 259, NOTIOB— continued. priority of assignments, see Assignments effect of, on vendor's lien . claim for necessaries to ship equitable mortgage tacking and consolidatiun registration of lauds equitable interests under Factors' Acts Innkeepers' Acts dishonour, see Bank Notes, Bills of Exchange, Cheques, Pbomissoby Notes. act of bankruptcy claim or trust in public stock pledge,_ see Money Market and Stock Exchange (Thi Discount Market) trust to stockbroker not receivable by registrar of companies to redeem pawn in lieu of statement of claim 465 mortgagee of lands entitled to six months' under Trustee Relief Acts 193, 320- -322 ,345 347 366 ,226 506 113- -115 238 239 230- -236 551- -563 354 ,194 197 500 530 280 242 -467, 472 122, 123 325, 326 OBLIGATION, See Bond, Contract. OFFICE of Land Registry . 277—281 for registration of bills of sale 199 et seq. See Ebgistration. OPTIONS on Stock Exchange . . 537 whether within Gaming Act iJ. ORDER for delivery up of specific chattels 482 pledge under Pawnbroker's Act . . . 247 for payment of money 326 See Actions, Assignments, Bills of Exchange, Cheques, Judgment Securities. ORDER AND DISPOSITION, See Bankruptcy. ORDINARY SHARES AND STOCKS 501 ORNAMENTAL FIXTURES, what and when removable • 176, 177 T T 2 644 INDEX. PAGE PA.CKEK, lien of 355 excluded from Factors' Acts 261 PAPER OR PARCHMENT, defeazance on bill of sale to be on same . . . . • 198 warrant of attorney or cognovit actionem. . . 95 PAR OF EXCHANGE 513 PARCHMENT 82 PARENT AND CHILD, effect of relation on policy assignment 305 PAROL, See CONTKACTS. PART PAYMENT, See Statutes oi' Limitation. PARTICIPATING POLICIES, See Life Policies ' 85 PARTICULARS on specially indorsed writ, see Actions (Procedure on Specially Indorsed Writ PARTIES to actions under Bills of Exchange Act 470, 471 to mortgage suits . . 476 PARTNERS, merger on judgment against ....... 388 cannot be sued in name of firm under Bills Act . . . 470 in firm of solicitors, lien of ....... 360 when goods in order and disposition of 1 86 PAST transaction as consideration for guarantee . . . , 104 biU of sale " . . 183, 184, 220—222 PAWNBROKER, See Pawns 242, 246—351 PAWNS In General, definition of 241 distinguished from lien or mortgage . , , , , ib., 327 INDEX. 645 PAWNS — continued. In trSNERAL — continued. transfer of possession, physical or by agreement . . 241, 327 only of things capable of delivery, actual or symbolic . ib., 242 persons by whom made 242 exempt from stamp 425, 431 pledge of securities, see Money Makket and Stock Ex- change. At Common Law, no writing necessary ...... time for redemption determined by notice ...... payment or tender revests property in pawnor . proceeds of sale, application of . sale not foreclosure, mode of realization pawnee bound to use ordinary diligence when pawnee may use pawn .... liability for loss of re-pledge by pawnee . negotiable securities pawned pawnor's rights against sub-pawnee pawn not lost when under control of pawnee sale by pawnor, right of purchaser tacking ....... ■redemption on decease of pawnor or pawnee effect of Statute of Limitations .... realisation, see Actions . . . . 481 242 ib., 244 ib. ib. ib. ib., 243 243 iO. ib. ib. ib. ib. ib. ib., 244 244 ib. ib. , 482, 489 Under Pawnbeokeks' Act. limitation of interest on . . . Great Britain but not Ireland governed by does not extend to pawns for over £10 nor if excluded by special agreement to pawns over £2 and not exceeding £10 applies to all other cases of pawnbroking pawns classified definition of pawnbroker and pawning licence necessary pledge-book, entries in sale-book, entries in . name and tables of interest pawn-ticket to be delivered profit, rate of . . . holder of ticket entitled to redeem form of declaration in lieu of ticket pawnbroker, liability of, for pledge destroyed by fire for depreciation by his own default order for delivery up of property unlawfully pawned prohibited transactions, pawns from persons under twelve or intoxicated ..... taking tickets issued by other pawnbrokers employment of servants under sixteen business on Sunday, Good ITriday, &c. purchase of their own pledges redemption with view to purchase 421 245 ib. ib. ib. ib., 246 246 ib. ib. ib. ib. ib. ib. ib., 247 247 ib. ib. ib. ib. ib. ib. ib. 646 INDEX. PAWNS — contin ued. Under Pawnbroker's Act- -continued. agreements for disposition of pledge within time of redemption .... unauthorised sale or other disposition taking in pawn linen, &c,, intrusted to pawnor to wash, &o search warrant ..... penalty for unlawful pawning power to seize and hand over to constable forms of pawn tickets rate of profit on loan of 40s. or under of above iOs. forms of declaration, charge of . pawns for 10s. or under, forfeiture of . charge for tickets .... pawns above 40s. and under £10, special contract tickets pawns for above 10s. and not above 40s., redemption of must be disposed of at public auction . duties of auctioneer .... sale of pictures, &c., only at certain "periods inspection of sale-book by pawnor penalty for offences against Act . charge of pawn ticket Ireland, pawnbroking statutes of ib.. 248 ib. ib. ib. ib. 249 249 ih. ib. ib. ib. 250 ib. ib. ib. ib., 251 Under the Faotoes' Acts. agent's power to sell or pledge at common law factor's right to sell, but not to pledge factor distinguished from broter set-off by purchaser against sale in market overt ..... Factors' Acts text of . . . . ... 4 Geo. 4, provisions of — ^lien of consignees on goods shipped in agent's name power of consignees to deposit on pledge goods rights of owner to recover goods . 6 Geo. 4, provisions of — enlarges former statute notice of agency ...... rights of owner to recover goods power to persons intrusted with documents to dispose of goods how far deposit valid for antecedent debt . contracts in ordinary course of business 5 & 6 Vict., provisions of — power to pledge extended documents of title, what included by . contracts must be bonAfide .... antecedent debts, pledges for, not protected loans made on contract in writing intrusted with possession of goods, who is . possession of agent, what is ... contract, with whom it may be made . advance, how it may be paid redemption under 252 ib. ib., n. (q) ib., n. (r) . ib., 253 551—563 253, 551. 552 ib.. 653—559 J6., 254, 555 254, 555, 556 ib. ib., 554 ib. ib., 555 255 559, 560 558, 559 iJ. ib., 500 ib., 256 ib., 256 ib. ib. ib. INDEX. 647 PAGE PAWNS — continued. TJndek the Factoes' Aois— continued. 40 & 41 Vict. o. 39, provisions of — application of . . ii., 563 agency, secret revocation of .... ib., 257, 562 vendors and vendees ib., 563 document of title, transfer by vendee .... ib., 258 see Liens (Unpaid Vendor of Persona] Property) 341 — 343 General Effect of Factors' Acts. nature of subject of sale or pledge 268 documents of title, what are, wharfinger's certificate . ib., 259 power of sale, pledge, or disposition ..... 259 effect of notice ib. factor's pledge for balance of value .... ib. to whom goods or docvments of title must be intrvMed . . ib., 260 persons intrusted with ...... 260 " agents," who are ....... ib.,261 carriers, warehout^emen, packers, wharfingers, clerks, servants excluded ...... ib. vendors and vendees ....... 260 what persons are deemed to be intrusted with goods or doci*- ments of title ....... ib. agent intrusted with one document of title through another 262 PAYMASTEB, GENERAL, pa3rment under Trustee Relief Act into name of . . . 324, 325 draft of, exempted from stamp 436 PAYMENT proper mode of discharging debt 379 of mortgage debt 110,126—130,474 into Court under Trustee ReUef Acts . . . .88, 325, 326 PENALTY on bond ... ....... 62, 63 on officers of company for non-registration .... 275, 276 for non-indorsement under Railway Com- panies' Securities Act . . . 287 under Pawnbrokers' Act ........ 248, 250 Stamp Act 431 interest in nature of, canno t be claimed 421 PEREORMANGE. See Spbcipic. PERPETUAL SECURITIES 495, 496 PERSONAL representatives, see Exeoutoes and Administeatoks. PERSONAL SECURITIES generally (Book I.) -"iii, ix, 1—108 compared with securities in property . . . 419, 420 re-delivery of • ■ • 410 effect of, on vendor's lien . . 334 648 INDEX. PILOTAGE, exoneration, by compulsory, sec Liens .... 371 — 3/4 lien for ibid SrS-SrS PLEDGE. See Pawns. of bills of exchange and securities, see Money Makket and Stock Exchange {The Discount Market) . . . 505— 513 POLICY. See Life Poliot. POLICY OF LAW, assignments prohibited by . 304 POST, transmission of dividend warrants through .... 500 POST OBITS. See Bonds. POST OFPIOB MONEY OKDEES, definition of 48 form of ib. instructions on 49 letter of advice with ih. inland or foreign ......... ib, scale of charges for inland ....... ib, for foreign 50 foreign countries, to what ........ ib., 55 issue, conditions of . . . . . . . . . 51 liability of Post Office ib. regulations, statutory ........ 52 descriptio;i of payee ib. crossing of .......... 53 payment of ib., 54 stopping of ......... . iJ. transfer of .......... ib. change of payee or remitter of . . . . . . . 54 duplicate orders ......... ib. safe transmission of ........ . ib., 55 German Empire. France, Italy .... . . 55 bills of exchange, whether at common law .... ih., 56 whether within Stamp Act .... 66, 57 a peculiar kind of valuable security ...... 57, 58 not negotiable .......... 58 case on .......... . ib. forgery of payee's name 59 payee, wrong description of ..... . ib., n. (k) POST NUPTIAL. See Settlements. INDEX. 649 POWER to seize distinguished from equitable assignment . . . 162, 163 to pledge, see Pawns. POWER OP ATTORNEY in mortgages of stocks and shares 157, 158 transfers .... 499 forgery of .... 600 stamp on . . .... . . 449, 450 POWER OF SALE. See Mortgages, Debentures. PREFERENCE stocks and shares 501, 502 priority of debenture stocks over . . . 286 holders, when bound by scheme . . . 289, 290 PREMIUM. See Life Policy. PROFIT, securities employed to produce .... 494, 504 — 513 account of rents and profits, see Mortgages. rate allowed pawnbroker, see Pawns ( Under the Pawnlfrokers' Act). PRESENTMENT of bank notes 32 biUs of exchange 8, 9, 11 cheques . 19 promissory notes . 6 PRESUMPTION of consideration for bill or note 3, 9 that instrument is duly stamped 427 PRINCIPAL and agent, see Agents. surety, see Guarantees. on Stock Exchange, see Money Market and Stock Exchange 530— 533 general liability of 491 — 493 of debt, interest follows nature of ..... . 421 PRIORITY generally, see Mortgages (Equitable Mortgages) . , 229 — 240 of assignments, see Assignments. assignee of policy, see Life Policies 86 — 88 by notice, see Notice. registration of bill of sale 219, 221 of debentures 270, 276, 280, 285, 286, 290 mortgage of ship 153 maritime liens, see Liens 374, 375 650 INDEX. FBIOBITY— continued. of post obits preference shares and stock several mortgages . solicitor's lien master of ship's lien jiidgment creditors transferees of sets of bill of exchange lading mortgage over garnishee order under Factors' Acts . in administration of bankrupt or deceased's estate PAGK 63 502 112—115 361 152 90—93 347 363 342, 343 61 PRIVATE SECUiilTIES 494,495 8, n. PKOMISSOEY NOTES, definition of ....... . form of ........ . may be converted into bills by intention . bills drawn and accepted by same person are distinguished from bank notes ..... are securities for money ....... vi, debenture in form of . whether instrument under seal can be .... 271, must be stamped before issue if inland .... absolute ........ for valuable consideration presumption of consideration for rights of hand fide holder ....... are inland or foreign ........ payment of lost, on indemnity may be subject of donatio mortis causa .... drawn by authorised ofScer under Companies' Act interest on ......... . stamps on . . 427, actions on, see Actions (Procedwre under Specially Indorsed Writ and under Bills of Exchange Act). limitation of 382— classification of inland Payable to a Cebtain Person, nature of ......... . days of grace, when allowed how computed, when last day Sunday, &c. or bank holiday ......... ib. (a) 36 27 , vii 271 272 3 ib. ib. ib. ib. ib. 411 415 272 422 429 384 4 Payable to a Certain Person oe Oedbb, nature of ...... . indorsement of, in blank or in full negotiability of, can only be partially modified indorsement of, meaning of . . . liabUity of indorser . indorsers are sureties . indorsement sans recoii/rs presentment of . dishonour of analogy to ib. ib. ib. 6 420 6 ib. ib. 524 INDEX. 651 PROMISSORY NOTES— contimoed. Payable to Beakee. transferable by delivery holder of, may sue maker or indorser , but not mere previous holder Negotiability and Opebation. negotiable, what are non-uegotiable maker not entitled to re-delivery of negotiation of, extinguishes debts negotiability of debenture constituting taken in payment suspends right of action . effect of taking on vendor's lien .... nature and effect of retiring .... not cancelled by testator's declaration FOEBIGN. rules as to protest on, unnecessary 390, PROPOSAL, See Life Policy 7 ib. ib. 263, 264 411 392 272 391 334 10 417 18 ib. 79, 80 PROTEST, acceptance supra 12, 13 of bSl of exchange 12, 14 of promissory note not necessary ...... 18 stamp on 456 PUBLIC FUJTDS 496 as securities, see Money Market and Stock Exchange vii, viii, 494— 503 PURCHASE of equity of redemption by mortgagee ..... See Absolute Bills oi' Sale, Contract, Liens, Settlements, Vendor and Purchaser. 116 PUT ON STOCK EXCHANGE , 537 QUI FAGIT PER ALIUM FACIT PER SE . . . QUI SENT IT OOMMODUM SENTIRE DEBET ET ONUS QUICQUID PLANTATUR SOLO, SOLO OEDIT 491 405 171 RAILWAY COMPANIES Act, 1867 288, 289 Securities Act 287 lien of unpaid vendor to 235, 336 debentures issued by, see Debentures .... 287 — 291 loan notes, see Lloyd's Bonds 295 — 297 stock and shares in, see Money Market and Stock Exchange 501 — 503 judgment against 290 652 INDEX. PAGK REAL PROPERTY, mortgages of, see Mortgages 108 — 149 JAmitsAimi. AxA, 19,7 i, ihid., {M ortgages of Freeholds) . 135—141 RECEIPT stamp on 429 power to give, on sale of morgaged property . . . . 121 RECEIVER under Companies Clauses Acta ....... 285, 287 Railway Company's Act, 1867 .... 289 Judgments Act .... ... 93 unpaid vendor cannot obtain .... . . 335 RECOGNIZANCE. See Gdaeantees ... 109 RECORD. See Collateral Securities 386 — 388 RECORD SECURITIES (judgment) 89 RECOVERY OF LAND. See Land, Limitations, Mortgages. REDEMPTION action, see Actions. limitation of time in, see Limitations. interest in ........ 136 — 138 effect of dismissal 228, 229 by judgment creditor 92, 93 of pawn at Common Law 242, 244 under Pavmbrokers Act, see Pawns {under the Pomk- brokers' Act) . ..... 245—251 Factors' Acts, ibid, (under the Factors' Acts) 252 — 262 pledged bill, see Money Market and Stock Exchange [the Discovmt Market) ...... 506 — 513 debentures, see Debentures. equity of, what 110, 111, 130 right to ib., 112, 92, 93 lost by lapse of time . . 130—141, 144—146, 148, 149 by subsequent mortgage . . . . . . 130 effect of purchase of , by mortgagee .... 116 and see generally Mortgages. RE-EXCHANGE on foreign bills .......... 15 REGISTRATION, nature and effect of, generally, see Mortgages (Equitable Mortgages) 238—240 undev BOls oi Bale Acts, ibid., (Bills of Sale) . . . 198—222 INDEX. 653 PAGE REGISTRATI 0: . . . . . . . . 495 proportion of holders of, to assent to scheme .... 289, 290 RENTS, title to, under mortgage 125 account of mortgagee in possession . . . 12:3—125,473,474,480 arrears of, recoverable 135 — 141 time extended by payment of 139, 140 REPAIRS by mortgagee, when allowed for . . . . . . 124 RE-PLEDGE. See Pawns 243, 248, 259 Money Market and Stock Exchange . . 506 — 513 REPRE 3ENTATI0N, distinguished from warranty 80 estoppel by, see Estoppel. REPUTED OWNERSHIP. See Bankruptcy. RBSCIlVD CONTRACT, stoppage in transitu doe.s not 346 654 INDEX. FAQS RESEKVATION of interest 117, 420 rights against surety ... .... 102 RESPONDENTIA 365, 366 RETIRING BILLS AND NOTES 10 RETOUR SANS PROTET 15 RETRAITE ib. REVENUE ACTS. See Stamps. REVERSION. See Mortgages (Mortgages of Leaseholds), Limitations. RULE IN EX PARTE WARING. See CoLLATEBAL Secdeitibs 397 — 402 RULES OE COURT, governing practice in action ...... 462, n. (k) Bills of Sale Act 222 RULES OF STOCK EXCHANGE. See Money Market and Stock Exchange. SALE by mortgagees Ill, 116, 120, 121, 153, 157 judgment, creditors ........ 91 93 lien holders 365 in market overt. ......... 252 by pawnees, see Pawns. of stock and shares, see Money Market and Stock Exchange 513 — 537 SALVAGE, maritime lien for, see Liens 367 — 370, 374 lien on corpus by life tenant 376 SATISFACTION, accord and 381, 382 entry of, on register of bills of sale 199, 200 warrant of attorney and cognovit ... 97 judge's order ........ 99 SCHEDULE. See Inventory. INDEX. 655 SCHEME OP ARRANGEMENT. See Debbntukes 289 290 SCIRE FACIAS on judgment 90 reoognizauce ]^08 SCOTLAND, subject to Pawnbrokers' Act 245 not subject to Locke King's Act and Amending Acts . . 542, 543 Bills of Sale Act, 1878 . . . . 556 See Bank Notes, Bank op Scotland. SCRIP certificates transferable by delivery 75 stamp on . . ... 448, 449 SEAL. See Deed. SEAMAN. See Liens (Mantime Liens). SEARCH WARRANT under Pawnbrokers' Act 248 SECURITIES, classification of vi — ix, 378, 490 comparison of 419,420 plurality of when advisable ....... iJ. actions on, see Actions and Othee Remedies. discharge of interest en, see Interest. stamps on, see Stamps. assignment of, see Assignments — Collateral SEruKiTiES 379 — 390 as commodities, see Money Mabket and Stock Exchange. SEQUESTRATORS receipt of rents and profits by, constitutes delivery in execution 92 SERVANT. See Master and Servant. SET-OFE by person purchasing from factor .... 252, n. (r), 555 by debtor of assigned debt 311 SETTLEMENT, voluntary, defeated by mortgage 395 generally, see fraudulent, infra. founded on consideration of marriage . . . 168, 189, 190, 304 656 INDEX. PAGE SETTLEMENT— comimwcd. fraudulent, against execution creditoi-s, see Moetgages {Bills of Sale) . . . . . . 167-170 trustee in bankruptcy, i6M. . . 189 — 191 SETTLEMENT DAYS ON STOCK EXCHANGE .... 518 SHAREHOLDERS, duty of to know memorandum of association . . . . 26 S liability of under Companies' Act ...... 503 proportion of, to assent to scheme of arrangement . . 289 — 290 in London Stock Exchange 515 SHARES in what s^nse securities ....... vii, viii, 496 distinguished from stock 497, 498 excepted from order and disposition in banltruptcy . . . 188 bequest of railway, passes railway stock ..... 498 under Companies' Act ........ 503 in railways ......... 501 — 503 in docks, waterworks, canals, and gas 503 warrants for .......... 156 certificates of . . . . . . . . . . 224 scrip, certificates of 75 quarterly return of under Mortgage Debenture Acts . . 278 assignment of under Judicature Act . . . , . . . 321 postponed to debenture stock ....... 286 priority of by registration 239 lien of solicitor against transferee of . . . . . . 358, 359 right of stockbroker to recover when bought ultra vires . . 530 transactions in unallotted ....... 634, 535 mortgage of, see Mobtgages {Mortijages of Stock and Sha/res in Oompanies). Monet Market and Stock Exchange [The Discount Market). purchase and sale of, ibid. {The Stock Exchange) . . . 513, 637 SHERIFF, effect of sale by 166, 313 duty of, on execution on judgment for over £50 . . 194 — 197 delivery of writ to, determines priority of judgment creditors . 92 does not render creditor secured . . . 396 execution by, restrained 177,178 analogy of equitable execution to . . . 92 SHIP. See Mortgages (Mortgages of Ships). Liens {Maritime Liens). SIGNATURE on guarantee ... 103 pawn tickets ..... ... 249 policy of assurance 77 78 See Attestation, Contbact, Indorsement. INDEX. 657 SIMPLE (JONTEAOT. ^'^"'^ See Agkeement, Contract. SOLICITORS, lieu of, see Libhb {Liens m Particular Trades and Professions) notice through— MOKTGAGES (Eqidtahle Mortgages) . 234-236, 239 SOLICITORS' ACT, effect of on assignments ....... So5 SPECIALLY INDORSED WRIT. .See Actions 462-467, 471, 472, 488 SPECIALTY. See Deed. SPECIFIC pertormauce of mortgages 115116 contracts on Stock Exchange .... 482 property subject to Hen ... .... 367, 370 SPECULATION. See Monet Market and Stock Exchange . . . 533 — 537 SPLITTING TICKET on Stock Exchange 520 STAKEHOLDER, money when recoverable from .... . . 535, 536 STAMPS, securities in writing generally liable to stamp duty . 425 exemptions from, pawns, equitable mortgages, &o. ... ib. law previous to 1871 ......... ib. Inland Revenue Repeal Act, 1870 ib. Stamp Act, 1870 ib. Amendment Act, 1871 ....... 426 Duties Management Act, 1870 ib. issue and Hcenoe to deal in ib. Stamp Act, 1870, analysis of ib. duty of 10s. substituted for duty of 35s. on certain instruments ib. on Crown property ib. duties to be paid and denoted as prescribed . . . . ib. general and special regulations ib. general principles 427 unstamped instrument not admissible in evidence ... ib. except where stamp unnecessary ib. or in criminal proceedings ....... ib. or for collateral purpose ib. debt recoverable from admissions, though instrument unstamped ib. most instruments may be stamped after execution on payment of penalty .......... ib. U U 658 INDEX. 427, instalments ib. STAMPS— continued. but not bills or notes unless drawn or made out of the United Kingdom or where ^tamp of improper denomination or bills payable on demand burden of proof as to presumption, when rebutted coupons do not require, except when notes to be according to principal object of instrument not necessary on accessory security for payment of principal by periodical post dated cheque or biU, when admissible without ad valorem duty ........... to be impressed in the absence of express provision . adhesive, on agreements, bills payable on demand, or on foreign bills and notes, on notarial act or protest, on policies or receipts ....... adhesive, necessary on foreign bills and notes only adhesive, cancellation of necessary . to appear on face of instrument 'separate for each instrument on same material for each distinct matter chargeable wiih duty for further or other consideration appropriated only available for particular instrument facts determining ad valorem duty to be truly stated ad valorem, duty in respect of money in foreign or colonial cuiTency of stock or marketable security on instrument stating current rate of exchange or average price depending on duty paid on another instrument . Commissioners of Inland Kevenue may be required to assess duty, except on a security for money or stock without limit general penalty of £50 for frauds in relation to adhesive . ■ . classification of exemptions ....... of matters not within Stamp Act .... pawns equitable mortgages, liens . expressly specified in Stamp Act transfers of shares in the funds or in ships .... under particular Acts of Parliament (Bankruptcy, Building, Loan, and Priendly Societies Acts) table of stamp duties incorporating special sections of Act 433- see also under various headings in Index. PAOB 427 a. ib. ib. ib. '., 428 n. (r) 428 ib. ib. ., 429 429 lb. , 430 430 ib. ib. ib. ib. ib. ib. ib. ib. 431 ib. ib. ib. ib. ib. ib. ib. 432 -460 STATED ACCOUNT, I U is evidence of STATEMENT OF CLAIM generally, see AcTlOKS. on cognovit actionem STATUTE. See Table or Statutes xliii. — xlix INDEX. <559 PAGE STOCK, mortgages of, see Momgages 155 — 158 registration of 239 distinguished from paid-up shares ...... 497, 498 is perpetual in nature . . ..... 496 as a security .......... vii, viii see generally Money Mahket and Stock Exchange. STOCK BROKER generally, see Money Ma'hket and Stock Exchange . 527 — 530 lien of . . . . .... 355, 356 STOCK EXCHANGE. See Money Makket and Stock Exchange. STOCK JOBBER, See JoBBEB. STOP ORDER on transfer of stock or shares ....... 158 on fund in Court, priority by 115 STOPPAGE IN TRANSITU, generally, see Liens {Liens of Unpaid Vendor of Personal Pro- perty) 344—347 Bills of Lading Act does not affect 302 when consignee entitled to policy monies 404 right analogous to . . . 346 STOPPING bank note . . . . ... .27 cheque ..... . . .20 Post Office order . . . . 53, 54 STRAW, man of, as transferee of shares 524, 532 SUBSTITUTION of security • 385, 386 on Stock Exchange, see Money Market and Stock Exchange '( The Stock Exchange). SUIT. See Actions and Other Remedies. SUMMONS in actions, see Actions and Other Remedies. in interpleader .......... 323 under Pawnbrokers' Act 242,244 SURETY, rights and liabilities of generally, see Guarantees. on bills and notes ■ ... .9, 272, 420 U U 2 660 INDEX. PAGE SUKPLUS ,,, ,„^ on proceeds of sale of mortgaged property .... mj i^J- restitution of ■' 480 pawn 242, 248, 250, 556 SUERENDEK of policy °^ of copyhold, mortgage created by ^*' SURVIVORSHIP POLICY 85 TACKING, general doctrine of, as to mortgages 113, 114 pawns 244 TAX, See Stamps. priority by .......... 230, 231 decree for foreclosure, where ....... 477 and under Acts for registration 239 TENANT. See MoETGAGES, Agbicdltcral Holdings Act. TENDER. See Legal Tendbe. TERMINABLE SECURITY 495 THREE PER CENTS, See Monet Mabkby and Stock Exchange . . . 498 — 500 TICKET under Pawnbrokers Act, see Pawns 246 —249 on purchase of shares on Stock Exchange 520 TIME, See Limitations, Notice of Dishonoue. TITLE deeds, see Moetgaqes. document of, see Documents op Title. TOWAGE, lien for, see Liens 374 INDEX. 661 PAGE TRADE fixtures, see Moetgages {Bills of Sale) . . 173, 175, 207—213, 545 liena, see Liens 348 -353 machinery 210 — 213 usage or custom of, see Custom. debts, due in the course of, exempted from order and disposition, see Bankruptcy. TRANSFER of instruments, see Indobsembnt, Negotiable. goods and chattels generally, see Mobtgages (Bills of Sale). by deed 61 lands, see Mortgages 108 — 149 ships, iUd. see Mortgages of Ships. stock and shares, ibid., see Mortgages op Stock and Shares. Money Market and Stock Exchange. TRANSIT. See Liens 343—347 TRANSITU. See Stoppage in Transitu. TREASURY BILLS, issue of 65, 70, 71 form of • 71 power of Bank of England to advance on ib. negotiability of ib., 72 banker's lien on 72 recovery of advances on forged ib. part of imfunded debt 499 TRUST, action on 464, 484, 489 limitation of ...... . 134, n. (i) assignment operating as complete 303, 304 account at bankers, appropriation by opening .... 357 gift of debt, or chose in action by declaration of . . 411 — 414 Uen given by breach of 376, 377 soHcitor has no, in judgment recovered ..... 360 See Assignments, Notice. TRUSTEE represents cestui que trust . 476 procedure by, where assignment of fund disputed . . 322— 326 payment by, into com-t under Trustee Relief Acts . . .325,326 power of, to invest in exchequer bills, &c 500 of pledgee of biU to sue as 507, 508 cannot hold stock certificates 499 in mortgages of shares . 157 deposit by railway company in name of 336 when vendor becomes bare 339 heir of mortgagee becomes a 123 662 INDEX. PAGE T'RUS'U'EE— continued. when assignee of security . . _ 'i\° priority where mortgagor makes himself ^^i notice to co-trustees of assignment 310 TRUSTEE BELIEF ACTS, payment into court under °<>' "^* ^^^ ULTRA VISES, „„- „.. what acts axe, see Debentuees ^°''> ^°Z transfer of policy ^^ whether Lloyd's bonds are ... ■ ■ • ^^o stockbroker has no right to sue on order o30 UNCHALLENGEABLE POLICY . ... 81 UNDERTAKING, meaning of, ae applied to companies -^74, 170, ZVX USAGE, ■ . ^ , liens existing by, see LlENS (Liens m Parttcular Trades and Pro- fessions) 349,356-363 of market as to pledge of bills, see Money Maekbi and Stock Exchange {The Discount Ma/rhet) .... 609 — 512 See CoBTOM. . generally, see Notice. USURY, abolition of Acts agamst 4.^1 VALUABLE CONSIDERATION, what 104, 168, 189 See MoKTGAGBS (BiUs of Sale), Negotiable, Settlements. VENDOR, assignment of purchase money by . . ... 321 to sub-purchaser, notice to .... . 310 lien of unpaid, see L^NS 329 — 347 under Eactors' Acta .... 254, 256, 257, 259 analogy to ....... . 376, 377 of shares and stock, see Money Maeket and Stock Exchange 630 — 632 VENDOR AND PURCHASER ACT, 1874, abolished tacking . . , . . . . 113, n. (g) reconveyance by personal representative under .... 123 forty substituted for sixty years' title under . . . 120, n. (e) VESTING ORDER, on mortgage of copyholds ........ 48 INDEX. 663 VERBAL CONTBACT, . ^^'^^ See CONTBACTS. YOID, See Chakgbs, Illegal, Infants' Eelij)!' Act. VOLUNTARY, See Settlement. WAGERING, contracts by way of . . . . . 535 537 WAGES, maritime lien for, see Liens .... 372, 373 WAREHOUSEKEEPER. lien of ... . 355, 356 under Eaotors' Acts . .... 341 — 343 carrier as ..... . . . 350 vendor as . . . ..... 337 certiHcate of, under Eactors' Acts . . 254, 255, 241—243, 554, 559 WARING JSX PARTE, RULE IN, See Collatbbal SEcnBiTiss 397 — 402 WARRANT, See Coupon, Dividend Waekant, Dock Wabbant, Shabe Wabbant. WARRANT OF ATTORNEY, See Judgment Seodeities. merger of, by judgment 388, 389 stamp on ... . .... 449, 450 WASTE of mortgaged land llO, «i., n. (d), 125 WHARFINGER, certificates of, under Factors' Acts... 254, 255, 258, 259, 261, 341—343, 554 lien of 355, 356 WIFE, See Maebiage, Maeeibd Women's Pkopeety Act. WILL of client, solicitor has no hen on 360 See Bequest, 664 INDEX. PAGE WINDING UP, effect of, on sale of shares 531 application in, by holder of debenture 483, 484 petition for .,,..,..,. ib. WITNESS, See Attestation. WORKMAN'S LIEN 348, 349,' 354, 355 WEIT, See Actions, Judgment Securities, Shbeiep. of distringm 158 WRITTEN INSTRUMENT, when necessary 77, 85—87, 103, 159, 316—326 interest on 422, 423 action on 390, 391 stamp on 425 THE END. STEVENS AND EICHAEDSON, PEINTEES, 5, GEEAT QUEEN STEEET, W.C. -\^'^'^:-mm.