RICHARD COOTE, ESQ., OF LINCOLN'S INN, BARRISTER AT LAW, AND FELLOW OF TRINITY HALL, CAMBRIDGE. SECOND AMERICAN EDITION, WITH NOTES AND REFERENCES TO AMERICAN CASES. PHILADELPHIA: T. & J. W. JOHNSON, LAW BOOKSELLERS, 1850. PREFACE. In presenting the Third Edition of this work to the public, the author is bound to observe that he has had the great advantage of the co-operation of his learned Co-Editor, whose labours have been devoted to it for nearly two years. The matter in the Text is almost doubled in quantity, although from the difference of type the Book itself is not much increased in actual bulk. The numerous Decrees of the able Judges now presiding over the different Courts of Equity, in addition to the Parliamentary Enactments bearing on the subject, render the task of a modern Law Author, in so wide a field as that of mortgage, almost herculean. A very copious Index, extending to upwards of a hundred pages, has been added, and all the authorities carefully considered from the date of the Work to the present time. It is hoped the errors will not be found numerous, although some must inevitably have occurred. It was expected that the Commission now sitting for the consideration of the Law of Real Property would have been able to have produced their Report on the subject of a General Registry prior to the appearance of this Book, so that any observations which occurred might have been added; but as the Report is still deferred, it has not been thought necessary to delay the publication of this Volume on that account: some other opportunity will perhaps present itself for the purpose. LINCOLN'S INN, January, 1850. PREFACE TO THE FIRST EDITION. IN bringing the present Treatise to a close, the Author is naturally anxious to address a few words in its behalf to the Public. He was induced to the undertaking by the general impression that a modern Work on the Law of Mortgage was wanting, and from his not being aware that any other gentleman was disposed to the task. Its appearance in Parts was a subject of regret to the Author, but circumstances, over which he had no control, rendered it unavoidable. Since the publication of the First Part, another Treatise on the same subject has been published, as also a new edition of Mr. Powell's Treatise on Mortgages, with Notes. Had the Author been aware that any other Work on the same subject was in progress, he would readily have relinquished his engagement; but he was not acquainted with the fact, until it was too late for him to recede. In reference to his own performance, he trusts he has been cautious in not drawing conclusions unwarranted by the authorities; he has been anxiously desirous, to the best of his abilities, in no instance to mislead his Readers. The compilation of a Law Treatise has, from the number of our Reports, become a work of considerable labour; and in traversing so wide a field of inquiry as is presented on a review of the Law on Mortgage, errors will unavoidably arise, and many defects occur; but the Author has the satisfaction of knowing that those, who from their learning and talents are best enabled to form a judgment of his Work, will be the most inclined duly to appreciate its difficulties, and to make every candid allowance for its imperfections. In conclusion, the Author hopes his efforts may, in some degree, prove useful to the Profession, and that he has not fruitlessly expended so much time and labour as have been devoted to the accomplishment of the present Work. LINCOLN'S INN, Michaelmas Term, 1822. PREFACE TO THE SECOND EDITION. DURING the period which has elapsed since the publication of the former edition of this Treatise, so many important alterations have been made by the Legislature in the Law of Real Property, that the labour of adapting the Work to the present state of the law has been almost equal to that of its original production. The author cannot flatter himself that omissions and errors will not be discovered, but he can safely allege, that neither care nor time (so far as his other engagements permitted) has been spared in order to avoid them. In some instances it has been impossible to predicate, with certainty, the full effect of the new Statute Law on the law as founded on the decisions of the Courts, or in other words, the effect of the les scripta on the lex non scripta. An instance of this occurs under the statute of the 1 Wm. 4, c. 47, prohibiting the parol from demurring by reason of infancy, which raises the question whether that enactment will apply to the case of a decree of foreclosure against an infant mortgagor; and many similar doubts might be instanced which can only be set at rest by the decisions of Courts of competent jurisdiction. An explanation may be due from the Author for the apparent contradictions in the passages to be found in pages 46, 48, 127, 435, 436, and 691. But the cause was this:-His Honor the Vice-Chancellor, in the cases of Ex parte Goddard and Ex parte Stanley, had made decisions which, if the statute 1 Wm. 4, c. 60, s. 8, on which they were founded, had stood alone, would clearly have been according to law. It happened, however, that a subsequent statute (4 & 5 Wm. 4, c. 23,) mistakingly referred to the former statute, as containing a provision which literally it did not contain, and it occurred to the author, who so stated it, that such a reference by the Legislature might possibly be sufficient by implication to give effect to that extent to the provisions in the former act. The precise point was afterwards raised before the Master of the Rolls in Ex parte Whitton, and his Lordship's decision was in accordance with the view so taken and stated in the Work by the Author. The ViceChancellor subsequently, on consideration of both statutes, agreed with the Master of the Rolls, and made an order to that effect on a rehearing of the case Ex parte Stanley, as noticed in page 691. |