Hopkinson v. Rolt. Notes. in a manner different from the rule of law as decided in the principal case of which he thought there was not sufficient evidence - the priorities must, after notice to the brewers of the distiller's mortgage, be regulated (according to the decision of Hopkinson v. Rolt) by the respective dates of the advances being made and goods supplied. This decision was followed by Lord ROMILLY, M. R., in Menzies v. Lightfoot (17 March, 1871), L. R., 11 Eq. 459, 40 L. J. Ch. 561. In Burgess v. Eve (25 Jan., 1872), L. R., 13 Eq. 450, 41 L. J. Ch. 515, Vice Chancellor MALINS clearly laid down that the principle of Hopkinson v. Rolt applied to the case where a person having given a continuing guarantee (under seal or otherwise) for advances to be made by a banker for a large sum, withdraws it by notice to the bank at a time when a much smaller sum only has been advanced. The notice of withdrawal would have the same effect as a notice of assignment given by the assignee; and if the fact of the instrument being under seal made any difference, the guarantor would at all events be entitled to withdraw the guarantee on the terms of paying the amount already due under it. In the case in point, however, he held that no notice had been given, and that the guarantee continued effectual. Where security is given to a bank for an overdrawn account, and notice is given of a subsequent assignment to another, the amount of debt for which the bank holds the security is determined by the rule in Clayton's Case ("Appropriation," p. 329, supra), so that if after notice of the subsequent assignment payments are made to the customer's credit in the account they will be applied pro tanto in discharge of the liability existing at the time of the notice. London & County Banking Co v. Ratcliffe (H. L. 14 June, 1881), 6 App. Cas. 722, 51 L. J. Ch. 28. The principle of the decision in Hopkinson v. Rolt extends to a purchaser as well as a subsequent mortgagee; and the original security does not extend to charge, as against the purchaser, the vendor's lien for unpaid purchase-money with the advances made after notice of the contract of sale. London & County Banking Co. v. Ratcliffe, ut supra. It has been attempted to argue that in the case of a company constituted under the Companies Act 1862, the operation of the rule in Hopkinson v. Rolt (so as to affect the company by a notice of charge on shares in the company to a bank) was excluded by the 30th section of the Act, which enacts that "no notice of any trust, expressed, implied, or constructive, shall be entered on the register or be receivable by the Registrar in the case of companies under this Act." But the House of Lords in Bradford Banking Co. v. Briggs (7 Dec., 1887), 12 App. Cas. 29, 56 L. J. Ch. 364, rejected this argument, and held that the Hopkinson v. Rolt. - Notes. notice of charge was not notice of a trust within the section, but simply affected the company in its trading capacity with knowledge of the Bank's interest, which they were not entitled as traders to disregard. So that, although the company had a lien on its own shares under their articles of association, which (according to a frequent form) provided that the company "shall have a permanent lien and charge on all shares for debts to them due by the shareholders, they were not entitled after notice of charge on the shares to the bank to insist as against the bank on their own lien for debts incurred to them by the shareholders after the notice. Hopkinson v. Rolt has been followed by the House of Lords in an appeal from Scotland, in a case where property was conveyed (or disponed) on an ex facie absolute title, but with a contemporaneous agreement showing that the property was to be held only in security of advances made and to be made. The House, reversing the decision of the Court of Session, decided that the disponee could not hold the property in security for repayment of advances made by him after receiving notice that the disponer had, for valuable consideration, conveyed his interest to another. Union Bank of Scotland v. National Bank of Scotland (H. L. 10 Dec., 1886), 12 App. Cas. 53. To explain the form in which the security was granted, it must be explained that, by Scotch law, a conveyance expressed on the face of it to be made by way of security cannot operate as a legal title by way of security for future advances. The expedient usually adopted is to give an ex facie absolute conveyance, and to accompany it by a memorandum expressing the real intention. The decision of the House of Lords was that the form of the security made no difference in the essential rights as between the disponer (or original owner), the disponee (the creditor holding the primary security), and other persons deriving rights from the original owner, and giving notice of them to the creditors holding the security. The rule in Hopkinson v. Rolt does not apply to the case where a contractor has assigned certain beneficial rights under his contract, so as to avoid the claims of the other party to damages for the breach of the contract, although such claims arise by reason of breaches after notice of the assignment. Government of Newfoundland v. Newfoundland Railway Co. (Judicial Committee of Privy Council, 7 Feb., 1888), 13 App. Cas. 199, 57 L. J. P. C. 35. AMERICAN NOTES. The principal case is cited by Mr. Pomeroy (3 Eq. Jur. § 1198), and also by the Court in Ackerman v. Hunsicker, 85 New York, 43; 39 Am. Rep. 621, with special reference to the doctrine that actual notice of the assignment is es Hogg v. Brooks, 15 Q. B. D. 256. — Rule. sential to terminate the lien for future advances. (It seems however that under the American Recording Acts, by the preponderance of conflicting decisions, the mere record of the assignment is not valid notice to the mortgagee. See authorities above.) Mr. Beach also cites the principal case (1 Eq. Jur. § 423). ASSIGNS. HOGG v. BROOKS. (C. A. 1885.) RULE. A MORTGAGEE by sub-demise is not an "assign" within the meaning of a proviso for determining a lease by notice delivered to the tenant or his "assigns." Hogg v. Brooks. 15 Q. B. D. 256, 257. Ejectment to recover possession of a shop in Regent [256] Street, Marylebone. At the trial before MATHEW, J., without a jury, it appeared that the plaintiff was the assignee of the reversion of a lease of the premises sought to be recovered, which had been granted in March, 1870, by the Royal Polytechnic Institution, Limited, to one Richard Curtis for twentyone years from the 24th of June, 1870. The lease contained the following proviso; "It shall be lawful for the landlords to put an end to this present demise at the end of the first fourteen years thereof by delivering to the tenant, his executors, administrators, or assigns, six calendar months' notice in writing of their intention to do so." Curtis, the lessee, shortly after he became tenant, mortgaged the demised premises by way of sub-lease to a Mr. Purkis, who took possession and let the premises to the defendant. The plaintiff being desirous to determine the lease of 1870, gave a notice to that effect in a letter sent by the post directed to Curtis at his last known address, but the letter was returned without having ever reached Curtis, who, it was admitted, had disappeared and could not be found. The plaintiff then directed a similar notice to Purkis and the defendant, as well as to Curtis, and served the same on Purkis and the defendant. Hogg v. Brooks, 15 Q. B. D. 257. - Notes. The learned judge at the trial held that such notice * was not sufficient to determine the tenancy, as the [* 257] notice, to be within the terms of the lease, could only be served by delivering it to Curtis, and he accordingly directed judgment to be entered for the defendant. The case is reported, 14 Q. B. D. 475. The plaintiff appealed. Finlay, Q. C., and Nicoll, for the plaintiff, contended, as at the trial, that Curtis, the lessee, could not by keeping out of the way prevent the plaintiff from determining the tenancy, and that service of the notice upon the occupier of the premises was sufficient. Blair v. Street, 2 Ad. & El. 329; Bac. Abr. title "Conditions" Q. "of the act of the parties," citing Co. Litt. 210 b, and Com. Dig. title "Condition " L (5). W. Allen, appeared for the defendant, but was not called on. BRETT, M. R. In this case there was a lease for certain number of years of the premises sought to be recovered, and which lease would be still continuing if nothing were done to determine it; but by a clause in it the parties have stipulated that if one thing be done the landlord may put an end to it, and in my opinion the Court must construe that clause according to the ordinary meaning of the English language. The parties to the lease have stipulated that the landlord may put an end to the lease if notice in writing to that effect be delivered to the tenant or his assigns, and it is as plain as can be that unless such notice be served by delivering it to the tenant or his assigns, the landlord has not fulfilled the condition on which alone he can put an end to the lease. Here there was no assign of the tenant, because the mortgage was by way of sub-lease, and the only person on whom the notice could be served in order to fulfil the terms of the proviso was the tenant Curtis himself; but on him the notice has not been served. Therefore the plaintiff is not entitled to recover possession of the premises. BAGGALLAY and BOWEN, L.JJ., concurred. AMERICAN NOTES. Appeal dismissed. The principal case is cited in Taylor on Landlord and Tenant, 8th ed., Boston, 1887, p. 65, note, but without any corresponding American doctrine. Levy v. Lovell, 49 L. J. Ch. 305. — Rule. ATTACHMENT. LEVY v. LOVELL (C. A. 1880.) RULE. PROCESS in the nature of foreign attachment, being merely a process to compel appearance, does not create a charge for a debt over the property attached; nor does it constitute the person using it a secured creditor for the purposes of the Bankruptcy Acts. Levy v. Lovell. 49 L. J. Ch. 305-310 (s. c. 14 Ch. D. 234, 42 L. T. 242, 28 W. R. 602). [305] This was an appeal from a decision of Vice Chancellor BACON. The case is reported 48 L. J. Ch. 357, 11 Ch. D. 220, where the material facts are sufficiently stated. The VICE CHANCELLOR had held that where creditors had issued a writ of foreign attachment in an action in the Lord Mayor's Court against their debtor, and had served the garnishees with the writ, but took no further step, and the debtor filed a liquidation petition, the creditors were secured creditors within the meaning of the 12th section of the Bankruptcy Act 1869. The trustee in the liquidation appealed. A writ of attachment is not a judgment or an execution under a judgment of a Superior Court. It is merely a process to compel appearance. If the defendant appears in the Court, there is an end of the attachment. Brandon on the Law of Foreign Attachment, at p. 104, says, " An attachment is a process merely to compel the appearance of the defendant in an action brought against him; therefore, upon his appearance becoming perfected, according to the custom, the attachment and all the proceedings thereupon become void, and the action becomes an action against the defendant, with |