II. T. Public stock may become the subject of loan, or it may PT10 be of itself the security for the repayment of money (8). Stock. And a contract for the transfer of stock is good, though the transferor is not possessed of it at the time (t). 1129. delivery of If the assignor retains possession of chattels comprised Nonin an assignment, or bill of sale, as it is technically termed, possession. this is primâ facie a badge of fraud, as against creditors. But it does not render the transaction fraudulent and void, where it is consistent with the deed; or where the deed is given to secure the repayment of a debt by instalments, and the deed provides, that, "until default shall be made in payment of all or any of the said sums," the assignor may retain possession (u). 1130. Where the first of two mortgagors of personal estate is Priority. paid off, and the person who pays it off takes an assignment of such personal estate to secure the repayment of the money advanced by him in paying off the debt to the original creditor, but does not take an assignment of the debt and security, he will not stand in the place of the original creditor as regards priority, because the original security is not kept on foot (v). 1131. II. A mortgage or pledge of personal property may be II. Tacking. held till a subsequent debt or advance, without notice of a mesne incumbrance, is paid, as well as the original debt (except so far as bankruptcy may alter the case), on the ground that the mortgagee or pledgee would not have lent the further sum except on the credit of the mortgage or pledge, and that he who seeks equity must do equity. This presumption may, indeed, be rebutted by circumstances; but unless it is rebutted, it will generally prevail in favour of the lien, against the pledgor himself, although not against (3) Coote Mortg. 3rd ed. 274. (t) Id. 276. (u) Martindale v. Booth, 3 B. & Adol. 498. (v) Medley v. Horton, 14 Sim. 222. As to the effect of notice, or want of notice, as regards priority, see infra, Part III. Tit. 12, c. 2, s. 11. CH. 2, s. 3. PT. II. T. 10, his creditors having a specific lien or interest in the property, or against subsequent purchasers of the equity of redemption (w). 1132. of balance of mortgage security. Application A mortgagee, whose security exceeds the debt secured, may apply the balance in payment of any unsecured debt due to him from the mortgagor, as against the mortgagor's executors (x). 1133. III. Mort gagor's right III. A mortgagor of personal property may redeem, to redeem, if he brings his bid within a reasonable time. But, on gagee's right the other hand, the mortgagee may either sell the pro and mort to sell. IV. Indemnity. V. Mortgage of a ship. perty on due notice, though no power of sale may have been given him, or he may foreclose (y). The reason would appear to be, that other things of the same kind, and of the very same worth, even to the party himself, may be purchased for the sum which the articles in question fetch. 1134. IV. If a person transfers his shares in a company by way of mortgage, and the mortgagee, as registered owner, becomes liable for calls or other payments, he cannot compel his mortgagor to indemnify him, unless he comes to redeem (z). 1135. V. A mortgage or transfer of a mortgage of a British ship or any share in her must be in a specified form, under seal, and attested, and registered; and the date and hour of its entry must be indorsed upon it. 1136. In case more than one mortgage of the same ship or share is registered, the mortgagees, notwithstanding any notice, have priority according to the date of registration. Every registered mortgagee may dispose of the ship or share mortgaged; but no subsequent mortgagee may do this, without the concurrence of every prior registered (w) Story's Eq. Jur. § 1034; 2 Spence's Eq. Jur. 772, 773. (x) In re Haslefoot's Estate, L. R. 13 Eq. 327. (y) Story's Eq. Jur. § 1031; 2 Spence's Eq. Jur. 637; Coote Mortg. 3rd ed. 279, 500. (*) 2 Spence's Eq. Jur. 774. Сн. 2, 8. 3. mortgagee, except under the order of some competent PT. II. T. 10, Court (a). 1137. By a first mortgage of a ship, even before registration, the mortgagee acquires the legal ownership of it, and has a right to take possession. And under s. 69 of the 17 & 18 Vict. c. 104, the only effect of the omission to register a mortgage is to postpone it to a subsequent mortgage or transfer which is registered before such first mortgage. As regards other parties, the unregistered prior mortgagee is complete owner, though of course subject to redemption. Subsequent mortgagees will only acquire the interest left to the mortgagor, or, in other words, his right to redeem. And the first mortgagee will have the right to the freight earned by the ship, as against equitable assignee of the cargo, without notice of the first mortgagee's title (b). 1138. A certificate of mortgage may be granted by the registrar to the owners of a ship, allowing a mortgage out of the country where the ship is registered. And the mortgage, when made, is to be indorsed, by a registrar or British consular officer, on the certificate of mortgage (c). 1139. Prior to the stat. 25 & 26 Vict. c. 63, s. 3, an equitable mortgage was invalid (d), but by that enactment, "equities may be enforced against owners and mortgagees of ships, in respect of their interest therein, in the same manner as equities may be enforced against them in respect of any other personal property." 1140. The mortgagee of a ship is entitled to the accruing freight from the time he takes possession (e). A security (a) Sm. Merc. Law, 195; Mau. & Pol. 33-5; 17 & 18 Vict. c. 104, ss. 66, 69, 71. (b) Keith v. Burrows, L. R. 1 C. P. D. 722. (c) Sm. Merc. Law, 196; Mau. & Pol. 36; 17 & 18 Vict. c. 104, ss. (d) Liverpool Borough Bank v. PT. II. T. 10, valid in equity may be given upon freight to be earned or CH. 2, 8. 3. a cargo to be acquired (ƒ). 1141. The first registered mortgagee of a ship, by taking possession of her before the freight is completely earned, obtains a legal right to receive the freight, and to retain thereout not only what is due on his first mortgage, but also the amount of any subsequent charge which he may have acquired on the freight, in priority to every equitable charge of which he had no notice; and it makes no difference that a subsequent incumbrancer was the first to give notice to the charterers of his charge on the freight (g). 1142. The transmission of a mortgage, by death, bankruptcy, marriage, &c., must be registered (h). 1143. When a mortgage is discharged, satisfaction is to be entered on the registry (2). 1144. (f) 2 Spence's Eq. Jur. 775. (h) Sm. Merc. Law, 196; Mau. & 73-75. (i) Sm. Merc. Law, 196; Mau. & Pol. 37; 17 & 18 Vict. c. 104, s. 68. OF CHAPTER III. INTERESTS UNDER STATUTES MERCHANT, STATUTES STAPLE, RECOGNISANCES, JUDGMENTS, DECREES, ORDERS, AND RULES OF COURT, AND ELEGIT. T. 10, CH. 3. Statute A STATUTE merchant is a bond or contract upon record, PART II. under the hand and seal of a debtor, publicly acknowledged before the mayor of the place, and attested by the merchant. Royal seal (a). 1145. staple. A statute staple is a bond of record acknowleged before Statuto the mayor of the staple, and attested by the seal of the staple (b). 1146. sance in the statute The statute staple was only intended for persons con- Recogni cerned in trade; but it became used so universally, that nature of a an Act was made in 23 Hen. 8, prohibiting any persons staple. but merchants from taking it. But this Act created a new kind of security, called a recognisance in the nature of a statute staple, which is a bond acknowledged before the Justices of the Queen's Bench or Common Pleas, the mayor of the staple at Westminster, or the recorder of London, and enrolled, upon which the same advantages may be had as upon a statute staple (c). The form of a recognisance is this: "That A. B. doth acknowledge to owe to our Sovereign Lady the Queen or to C. D. the sum of 100%.," with condition to be void on performance of the thing stipulated (d). 1147. (a) 2 Cruise T. 14, § 8; Coote Mortg. 3rd. ed. 36, 74. This security was created by the statute 11 Edward 1, extended by the statute 13 Edward 1, stat. 3. (b) 2 Cruise T. 14, § 12; Coote Mortg. 3rd ed. 74. This security (c) 2 Cruise T. 14, § 13; Coote (d) 4 Cruise T. 32, c. 8, § 19. |