4. A mortgagee is entitled to tack
one mortgage to another on his peti-
tion for a sale, if the assignees de-
cline an offer made by him to abandon
all right of proof on their releasing
the equity of redemption in both
mortgages.
Semble, that he would be so enti-
tled whether such offer were made
or not, and that the right of tacking
is the same whether the party seek-
ing relief is the mortgagor or the
mortgagee.
A mortgagee assigns the mortgage
debt and executes a bond to the as-
signee for the amount, but by a
memorandum of even date with the
assignment he declares that he ad-
vanced to the assignor part of the
debt only, and will stand possessed
of the remainder (specifying the
amount) in trust for the assignor.
The security proving deficient, Held,
that the transaction was in substance
a submortgage, giving the assignee a
priority as to the amount advanced
by him. Ex parte Berridge, 3 M. D.
& D. 464.
5. On a petition of an equitable
mortgagee, where the deposit was
made only a month before the issu-
ing of the fiat, the Court directed an
inquiry, upon the request of the as-
signees. Ex parte Clouter, 3 M. D.
& D. 187.
6. Order giving legal mortgagee
leave to bid, made after the sale
nunc pro tunc. Ex parte Yorke, 3
M. D. & D. 329.
7. On a sale under the fiat of pre-
mises mortgaged by the bankrupt,
leave given to the assignees to fix
such reserved bidding as the Com-
missioner might approve of. Ex
parte Lackington, 3 M. D. & D. 331.
8. Assignees are entitled to have
the direction of the Court, with re-
gard to the rights of parties claiming
to be equitable mortgagees of pro-
perty of the bankrupt; and are there-
fore entitled to their costs out of the
mortgaged estate, although they have
been requested to concur in a sale,
without a petition being presented.
Ex parte Stevens, 3 M. D. & D. 317.
9. Quære, whether a security by
way of conveyance to a trustee on
trust to sell and pay out of the pro-
ceeds the sum secured, is a legal
mortgage within Lord Loughborough's
order. Ex parte Barnett, 3 M. D. &
D. 662.
10. Where there was a sufficient
part performance to take a parol con-
tract for sale out of the Statute of
Frauds, and the purchaser became
bankrupt: Held, that the vendor
wishing to have effect given to his
lien for unpaid purchase money, was
entitled to have his costs out of the
estate sold. Ex parte Cooper, 3 M.
D. & D. 717.
11. A mortgagee of a policy of
assurance creates an equitable sub-
mortgage of it by deposit, and be-
comes bankrupt. No notice of the
original mortgage is given to the
office, nor is any notice of the sub-
mortgage given either to the office,
or to the mortgagor. Held, that the
submortgage was invalid as against
the assignees. Ex parte Wood, 3 M.
D. & D. 315.
12. An equitable mortgagee of an
estate, of which the bankrupt is
legally the owner, may prove with-
out giving up his security, if the
estate subject to the mortgage be
so incumbered that the bankrupt
would have no beneficial interest in
it, if the mortgage were removed.
A partnership, consisting of a
father and a son, is dissolved; the
father equitably mortgages an estate
of his own to secure a debt due from
the son separately, and afterwards
dies indebted, jointly with the son,
to an amount more than sufficient
to exhaust his assets, including the
mortgaged estate, even if the mort-
gage were removed. The estate de-
scends to the son, who becomes
bankrupt. Held, that the mortgagee
might prove and keep his security.
Ex parte Turney, 3 M. D. & D.
13. The costs of an application of
a mortgagee for leave to bid at the
sale will not be allowed out of the
proceeds, unless the assignees con-
sent. Anon. 3 M. D. & D. 339.
14. As a general rule the assignee
of a bankrupt stands exactly in the
place of the bankrupt as to third
persons.
The provisional assignee of a
bankrupt mortgagor is not entitled
to his costs against the mortgagee,
the plaintiff, in a foreclosure suit.
Hughes v. Kelly, 2 Con. & Law. 223.
15. Where deeds were deposited,
with a written memorandum, to se-
cure the debt of two partners, and
after the death of one it was ver-
bally agreed that the deposit should
be extended to secure the separate
debt of the surviving partner: Held,
that the costs should be apportioned
as to the sums respectively due from
the joint and separate estate, in the
one case as on a deposit with a writ-
ten agreement, and in the other as
on a deposit by parol. Ex parte
Ford, 3 M. D. & D. 457.
16. Form of order on petition of
equitable mortgagee by deposit with
written memorandum, where the me-
morandum has been lost. Ex parte
Rogers, 3 M. D. & D. 297.
17. Where, in June 1837, the
bankrupt verbally deposited a bundle
of deeds with the petitioner to secure
a debt, which the petitioner believed
were all the deeds relating to the
property in question; and in August
1843, only two days before the issu-
ing of the fiat, the bankrupt deposited
two other material deeds relating to
the property, and there was no affi-
davit on the part of the assignees or
the bankrupt impeaching the validity
of the latter deposit; the Court would
not impute to it the character of a
fraudulent preference, and made the
common order as in the case of a
verbal deposit.
The last deposit was accompanied
with the following memorandum :
"The deeds are placed in the hands
of F. G." Held, that this did not
entitle the petitioner to an order as
on a deposit, accompanied with a
memorandum in writing. Ex parte
Gillett, 3 M. D. & D. 458.
See ASSIGNEES, 4, 12-BILL OF Ex-
CHANGE, 3-COSTS, 8-PAYMENT
INTO COURT.
See COSTS, 8-SPECIAL CASE, 2.
1. Notice of a docket having been
struck is not " notice of a prior act
of bankruptcy," within the meaning
of the 2 & 3 Vict. c. 29. Hocking v.
Acraman, 12 M. & W. 170; 3 Dowl.
N. S. 434.
2. Notice of the issuing of a fiat
in bankruptcy against one R. was
sent by post to S. and T., the attornies
of the defendants at Liverpool, on
the 23rd of January. S. and T. had
a box at the post-office in which
their letters were placed, and which
box was fetched from the post-office
by one of their clerks about nine
o'clock every morning. There was
no evidence to show the precise time
at which S. reached his office on the
morning of the 24th, but supposing
him to have pursued his usual course,
he would arrive there at about ten
minutes before ten, and at half-past
ten T. arrived there and found his
partner with the letter open before
him. At twenty minutes past ten,
on the morning of the 24th, a she-
riff's officer called at the house of R.
for the purpose of executing a writ
of fi. fa. at the suit of the defend-
ants, and saw a female servant of R.,
who told him her master was from
home. The officer, without saying
anything, left a man with the war-
rant to wait R.'s arrrival ; R. came in
a little before eleven o'clock, when
the officer's follower first made
known his business. In trover by
the assignees of R. against the de-
fendants, the question was, whether
the communication of the notice to
S. and T. or the levy was first in
point of time. The jury having
found for the defendants, the Court
refused to disturb the verdict, hold-
ing that the notice took effect only
from the reading of the letter, and
the levy from the first entry of the
officer for the purpose of seizing,
and that the jury might, under the
circumstances, reasonably infer from
the evidence that the levy took place
first. Bird v. Bass, 6 Scott, N. R.
928.
3. Knowledge by a creditor that a
bill of sale comprised all the debtor's
property, Held sufficient notice to
him that it was an act of bankruptcy.
Lindon v. Sharpe, 7 Scott, N. R. 730.
See BILL OF EXCHANGE, 3-EXECU-
TION, 12-FRAUD-MORTGAGE, 11
-PROOF, 6.
NOTICE TO PRODUCE.
See EVIDENCE, 2.
OFFICIAL ASSIGNEE.
1. The appointment of an official
assignee is a matter peculiarly within
the discretion of the Commissioner,
with which the Lord Chancellor will
not interfere, unless under very
strong circumstances. Where there-
fore an estate had been nearly wound
up before the passing of the act 5
& 6 Vict. c. 122, and it was stated
that all that remained to be got
in consisted of the damages reco-
vered in an action by the creditors'
assignees, who had expended large
sums out of pocket in the prosecution
of the action, the Lord Chancellor
refused to direct that no official as-
signee should be appointed.
parte Bowker, 3 M. D. & D. 324.
2. Upon an application by an offi-
cial assignee to be indemnified by
the creditors' assignee from the costs
of a pending action, in which the
name of the official assignee had
been joined as a co-plaintiff without
his consent, the Court offered him a
reference to the Commissioner to in-
quire whether the action was for the
benefit of the estate, and that being
declined, ordered the petition to
stand over till the result of the ac-
tion was known. Upon the case
coming on for further directions,
after a verdict obtained against the
assignees, it appearing that the cre-
ditors' assignee had offered his per-
sonal indemnity for the costs of the
action a year before the petition was
presented, which was declined by the
official assignee, the Court, upon the
renewal of that undertaking by the
creditors' assignees, dismissed the pe-
tition, with costs. Ex parte Turquand,
3 M. D. & D. 475.
3. An official assignee made de-
fendant to a foreclosure suit, as re-
presenting the interest of a mesne
incumbrancer who had become bank-
rupt, Held, not to be entitled to his
costs from the plaintiff, although he
disclaimed absolutely at the hearing.
Clarke v. Wilmot, 1 Phill. 276.
ONUS PROBANDI.
See EXECUTION, 7.
ORDER AND DISPOSITION.
See REPUTED OWNERSHIP.
1. A. and B., who are partners,
and C., as their surety, give a joint
and several promissory note to D.,
by which they "jointly and severally
promise to pay" to D. the amount of
a partnership debt, due from 4. and
B. The note is signed by A. and B.,
not as individuals, but in their part-
nership firm, and by C. the surety.
Held, that this note could not be
treated as the several note of each
one of the three, but as the several
note only of the surety, and the joint
note of A. and B.; and that, on the
bankruptcy of A., who had survived
his partner B., the holder of the note
could only rank as a creditor against
the joint estate. Ex parte Wilson, 3
M. D. & D. 57.
2. Two of six partners, who had
given a confidential clerk a general
authority in writing to sign bills and
notes on behalf of the firm, direct
the clerk to sign four promissory
notes in the name of the firm, pay-
able respectively to one or the other
of the two partners, who claimed to
be creditors of the aggregate firm in
respect of an excess of capital, ad-
vanced by them for the purposes of
the partnership. The two partners
afterwards indorse the notes to a
separate creditor for a private debt
of one of the two. Held, that al-
though as between these two part-
ners and the other members of the
firm, the notes were unjustifiably
created and possessed by the two,
yet in the absence of all fraud or
connivance in the transaction, by the
party to whom the notes were in-
dorsed, the firm of the six were lia-
ble for the amount, and that on the
bankruptcy of the firm the holder of
the notes had no right to prove the
amount of them against the joint
estate. Ex parte Bushell, 3 M. D. &
3. Members of a brewing firm
execute a joint and several bond to
the bankers of the firm, conditioned
to be void if the brewers paid the
balance due at any time to the bankers
when thereunto requested, such re-
quest to be in writing and to be sent
to the bank. On the bankruptcy of
one of the obligors, held that a re-
quest must have been made before
the bankruptcy to entitle the bankers
to prove.
But, it appearing that part of the
amount was due on bills of exchange,
which had been dishonoured, and
which the bankers had in writing
required the brewers to pay, without
however referring to the bond, held,
that this was a sufficient request.
The bills were drawn or accepted
by the bankrupt and two other di-
rectors of the brewing firm, describ-
ing themselves as such directors, but
not otherwise purporting to bind the
firm. Held, that this created no se-
parate liability of the bankrupt, en-
titling the bankers to prove on the
bills alone. Ex parte Flintoff, 3 M.
D. & D. 726.
4. A customer deposits a box con-
taining various securities with his
bankers for safe custody, and after-
wards grants a loan of a portion of
such securities to one of the partners
in the banking-house for his own
private purposes, upon his deposit-
ing in the box certain railway shares,
to secure the replacing of the secu-
rities thus lent. This partner after-
wards, for his own purposes, and
without the knowledge of the cus-
tomer, subtracts the railway shares,
and substitutes others of less value,
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