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(2) The court can insure the proper performance of the delivery of an article or conveyance of a plot of land, but it can not insure the proper performance of an agreement to sing a song or to become another's partner.

(3) When a purchaser by his own negligence bid for a lot at an auction when he intended to buy another lot, the court refused to enforce performance against him. (Snell, Pt. III, c. 9.)

Q. 5. Are there any exceptions to the general rule that the court will not compel specific performance of part of a contract unless it can execute the whole of it? Give an example of a divisible contract which the court will decree to be specifically performed, and of an indivisible contract which the court will not specifically perform.

A. There are exceptions, but they do not appear to be referable to any clear principle. In Lumley v. Wagner (1 De G. M. & G., 601), under an agreement to sing at one theater and nowhere else during three months, the court granted an injunction against singing elsewhere.

In Donnell v. Bennett (22 C. D., 835), where the defendant agreed to sell all his fish refuse to the plaintiff and to no other manufacturer, Fry, J., granted an injunction against a breach of the latter clause, saying that the authorities appeared to establish that an injunction might be granted where there was an express negative clause which was separable from the rest of the agreement.

In Sticker v. Wedderburn (3 K. & J., 393), the court refused to grant specific performance of a contract by promoters of a company to purchase a patent, when the contract stipulated that the vender should give his services to the company for two years, on the ground that the court could not see to the proper performance of the last mentioned stipulation. (Ante, Vol. v, p. 22; Vol. 11, 121; Fry on Specific Performance, c. 15; Kerr on Injunctions, c. 22, s. 1.)

Q. 6. Are there any exceptions to the general rule that equity will not decree specific performance of contracts as to personal chattels or personal acts? If so, give instances and state the grounds on which the jurisdiction in such cases is based.

A. As to personal chattels, the general rule is based on the principle that in general one chattel can be made just like another; and therefore it will be sufficient compensation for nondelivery of a chattel to order payment of the cost of getting another together with any loss caused by the delay. If this reason ceases, the law ceases also; and it is established, therefore, that the court will order delivery of articles of special value, like a picture by a celebrated artist, the loss of which can not be adequately supplied by another. It has also been held that the court would order the delivery of ships to a charterer, but not their conveyance to a purchaser; the assignment of interests in personal estate uncertain in their amount or in the time of their payment; the assignment of patents; the delivery of title deeds; the transfer of shares in small companies, which could not be bought in the market; and the court will order a purchaser to accept shares, which are unmarketable by reason of a liability attached to them. (Snell, Pt. III, c. 9; ante, Vol. 1, pp. 265-267.)

As to personal acts, the court in general refuses to order their performance on the ground that it can not insure their proper performance. The court has, however, ordered a railway company to make a siding, according to its contract (Lytton v. Great Northern Railway Co., 2 K. & J., 394); and other cases have occurred in which a covenanter has been ordered to do work upon his own land according to his contract. (See Wilson v. Furness Railway Co., L., R. 9 Eq., 28; Greene v. West Cheshire Railway Co., L. R. 13 Eq., 44; Firth v. Midland Railway Co., L. R. 20 Eq., 100; and Cooke v. Chilcott, 3 C. D. 694, which last mentioned has been overruled on other points by Haywood v. Brunswick Permanent Building Society, 8 Q. B. D., 403; and Austerberry v. Corporation of Oldham, 29 C. D., 750. See also specific performance refused in Wilson v. Northampton, etc., Railway Co., L. R. 9 Ch., 279; and compare Powell, etc., Co. v. Taff Vale Railway Co., ibid, 331.)

Q. 7. Where a vender is able to perform his contract in its substance, but can not pertama it literally in all its parts, can he, in the absence of any condition or stipu

lation on the subject, compel the purchaser, or be compelled by bim, to perform the contract so far as he is able; and, if so, on what terms or conditions in each case?

A. The general rule is that the vender can not compel the purchaser to take the property unless lie can make a title to every part according to the contract, and according to the description of the property contained in the contract. Cases have occurred, however, in which a defect in the title of a small immaterial portion, or a deficiency in the acreage of some part, has been held not to be fatal; and the pi chaser has been compelled to take the property with an abatement in respect of the faulty part.

On the other hand, the general rule is that if the vender can not make a title according to the contract the purchaser may compel him to sell such interest as he has, with a reduction in the purchase money as compensation for the deficiency. But the court will refuse this if it would entail special hardship on the vender or prejudice the position of others. (Snell, Pt. III, c. 9.)

Q. 8. What is the difference between the doctrine of the consolidation of securities and tacking? Give an example of each, and state on what principles they respectively rest.

A. The consolidation of mortgages is a name given to a right formerly accorded to all mortgagees, namely, that when a mortgagee held two securities for two debts due from the same mortgager, he might refuse to allow one of them to be redeemed separately from the other. It was said to rest on the principle that he who would have equity must do equity. If the mortgager desired to exercise liis equitable right of redeeming one property he was bound to perform the equitable act of paying the other debt also.

Tacking was a name given to another right-namely, that if a mortgagee held a legal mortgage on certain property, and he had also made another advance of money on security of the same property, without having notice of any other puisne incumbrance, he was allowed to tack his further advance to his legal mortgage, in priority to any other puisne incumbrance which happened to exist. This was said to depend upon the principle that where equities were equal the law should prevail. The two puisne incumbrances were considered as baving equal equities though one was later iu time than the other. (Snell, Pt. II, c. 16.)

Q. 9. What is requisite to the validity against the mortgager's trustee in bankruptcy of (1) a mortgage of a ship or of shares in a ship; (2) of a bill of sale of personal chattels under the bills of sale act, 1882; (3) of legal debts; (4) of funds of the mortgager in the hands of a third person; and (5) of funds in court standing to the credit of a cause!

A. (1) As to a ship, or a share in a ship, the merchant shipping acts provide for the registration of the ownership of every British ship, and the registration of every mortgage or assignment of the same. Mortgages rank in the order of their registration, and notice of a prior unregistered mortgage has no effect. Tlie acts also provide a form of mortgage, and direct every mortgage to be made in the form so provided, or as near thereto as the circumstances admit. Nevertheless, it may be coubted whether an unregistered mortgage is not good against the trustee in bankruptry of the mortgager. Equities may be enforced against the registered owners of ships, and the trustee in bankruptcy stands, in general, in the same position as the bankrupt. He takes only what the bankrupt is entitled to, and takes the bankrupt’s property to all equities affecting it. In certain cases his rights are extended by the reputed ownership clause, which has been introduced into all bankruptcy acts, but, in default of any special statutory enactment, the trustee in bankruptcy stands only in the shoes of the bankrupt, and does not rank as a purchaser for value from him. (Wms. P. P., Pt. I, c. 4.)

(2) The bills of sale act, 1882, only applies to bills of sale thereafter given as security for money. As to such bills, the goods comprised therein pass to the trustee in bankruptcy of the borrower, under the reputed ownership clause, if they remain in the possession of the bankrupt. See Swift v. Pannell (24 C. D., 210), in which it was held that other bills of sale, if duly made and registered, are still good against a trustee in bankruptcy claiming under the reputed owuership clause. (Bankruptoy act, 1883, s. 44, Ø (iii).)

A bill of sale under the act of 1882 is also voill as to the chattels comprised therein, unless it is duly attested and registered under the act of 1878 within seven days, and unless it states truly the consideration for which it was given (s. 8). It is also void altogether unless made in the form given in the schedule to the act (s. 9). It is also void altogether if given in consideration of a sum less than £30.

(3) As to legal debts. The bankruptcy act, 1883, s. 4, Ø (iii), provides that things in action other than debts due or growing due to the bankrupt in the course of his trade or business shall not be deemed goods within the meaning of the section.

The result of this clause appears to be that a mortgage of a debt due to the bankrupt in the course of his trade will be void, unless notice thereof has been given to the debtor before the commencement of the bankruptcy, so as to take it out of tho reputed ownership of the bankrupt. But a mortgage of any oiher kind of debt would be good without any such notice. Moreover, there does not appear to be any statute or rule of law requiring writing or any formality for a mortgage of any legal debt, but it would be very unwise ever to dispense with a written assignment in such a case; and a power to sue in the name of the assigner should be added, as the case is not covered by the judicature act, 1873, s. 25, $ 6. But under an assignment of a debt on trust to get it in, retain a certain sum, and pay the surplus to the assigner the assignee may sue in his own name. (See Burlinson v. Hall, 12 Q. B. D., 317.)

(4) Funds of the mortgagee in the hands of a third person. Such funds, when so circumstanced as not to give rise to a legal debt, confer an equitable right of action on the owner. The case then comes under the 9th section of the statute of frauds, which requires writing and the signature of the assignor for the assignment of every equitable interest. The assignee of an equitable right could always sue in his own name for such relief as he was entitled to. Such an assignee is bound to give notico to the party liable in order to protect himself against any subsequent purchaser; but notice does not appear to be necessary as against a trustee in bankruptcy of the assignor. It is clear, however, in these cases, both as to legal and equitable claims, that if an assignee omitted to give notice, the party liable would be discharged by payment to the trustee in bankruptcy as he would by payment to the bankrupt himself before bankruptcy, and it might perhaps be held that the security was thereby lost. (See Re Bright's Settlement (13 C. D., 413;, and Palmer v. Locke (18 C'. D., 381.)

(5) As to funds in court standing to the credit of a cause, an interest in such funds is included in the general term equitable rights, and what we have said above respecting equitable rights applies to such a case. The more of giving notice to the court is, however, putting a stop order on the funds. This does not appear to be essential in order to establish the title; but, in the absence of it, the funds might be paid out to the mortgagor's trustee in bankruptcy. (See the cases last cited, and Pinnock v. Bailey (23 C, D., 497); Mutual Life Assurance Society v. Langley (26 C. D., 686,) varied on appeal (W. N., 1886), 4; In re A. D. Holmes (29 C. D., 786).

Q. 10. What are the remedies of a mortgagee of freehold and leasehold property (the mortgage being in the usual form, and containing the usual covenants and provisos) for the recovery of his debt and interest?

A. The remedies are as follows:

(1) To enter into possession and receipt of the rents and profits of the mortgaged property, and retain his principal, interest, and costs thereout.

(2) To sell the whole or any part or parts of the mortgaged property and do likewise. This power can only be exercised when it is authorized by the mortgage deed or by statute, and should not be exercised unless the circumstances have arisen to warrant it. In general it is necessary that interest should be in arrear for a certain time, or that default should be made in paying of the capital after a certain notice, in order that a power of sale may become exercisablo. (See the conveyancing act, 1881, s. 20, for the conditions of the statutory power annexed to all inortgages by deed executed after Jan. 1, 1882; and see Lord Cranworth's act, 23 and 24 Vict., c. 145, part 2, for a prior statutory power.)

(3) The same statutes give a mortgagee power to appoint a receiver to pay him his interest and costs; but under the conveyancing act a receiver can only be appointed when the power of sale has become exercisable.

(4) To bring an action to recover personal judgment against the mortgagor for payment of the principal and interest. It is the practice that such a judgment may be obtained under Order XIV, as in the case of an unsecured debt.

(5) To bring an action of foreclosure against the mortgagor; and

(6) To combine the two last remedies in one action, praying for imniediate personal judgment and foreclosure in case of default for six months.


Q. 1. Under what conditions may a writ of summons be served out of the jurisdiction?

A. A writ of summons can not be served out of the jurisdiction without leave of the court or a judge, which can be given only in certain cases, including the following: Where the action relates to land within the jurisdiction, or to the construction, rectification, or setting aside of a contract or other instrument relating to such land; where the relief is sought against a person domiciled, or ordinarily resident within the jurisdiction; where the action is founded on a breach within the jurisdiction of a contract which ought to be performed within the jurisdiction (unless the defendant is domicileil, or ordinarily resident in Scotland or Ireland); where the action is for an injunction as to anything to be done within the jurisdiction, or respecting a nuisance within the jurisdiction; where a person ont of the jurisdiction is a necessary or proper party to an action against another person duly served within the jurisdiction. The application for leave to serve the writ out of the jurisdiction must be supported by evidence showing a good cause of action, and the deponent's belief as to where the defendant is, er probably may be found, whether he is a British subject or not, and the grounds on which the application is maile. Where leave is given, a time is limited after the service within which the defendant is to enter an appearance. Where leave to serve the writ in Scotland or Ireland is songht, the court or judge has a discretion as to granting leave in any of the foregoing cases. (Ord. XI.)

Q. 2. What are the principal ruleg as to the discovery of documents in the possession of a party to an action, and what are the consequences of noncompliance with orders for discovery?

A. A party to an action may be ordered by the court or judge to make discovery upon oath of documents in his possession relating to any matter in question in the action. The order is obtained on the application of the other party; but the application may be refused or adjourned if such discovery is not necessary, or not necessary at that stage of the proceedings, or such other orier may be madle, either general, or limited to certain classes of documents, as the court or judge may think fit. The discovery is made by an affidavit, setting forth the documents, and distinguishing those which the deponent claims to be privileged froin producing. Tho party seeking discovery must before applying for it pay into court the sum of £5, or buch further sum as may be ordered, the money so paid in to remain in court until the action has been finally disposert of, and then to be paid to the party by whom it was paid in if the costs are adjudged to him, and otherwise to be subject to a lien for the costs.

A party failing to obey an order for discovery is liable to attachment, and, also, if a plaintiff, to lave his action dismissed for want of prosecution; and, if a defend

ant, to have his defense struck out, and to be placed in the same position as if he had not defended. (Ord. XXXI.)

Q. 3. What is the form of the writ of fieri facias, and what effects of the debtor are excepted from its operation?

A. The writ of fieri facias commands the sheriff that of the goods and chattels of the judgment debtor he cause to be made the sum stated in the writ (being the amount of the judgment debt), with interest thereon, and also the amount of the costs, with interest thereon at the rate of 4 per cent per annum. The writ is executed by the seizure and sale of the goods and chattels of the judgment debtor.

Under a fieri facias all the personal goods and chattels of the judgment debtor may be taken, with the exception of the wearing apparel and bedding of himself, or his family, and the tools and implements of his trade, the value of such articles not exceeding in the whole £5. (8 and 9 Viet., c. 127, s. 8.).

Q. 4. Describe a promissory note and a crossed check. Is the banker of the maker or the drawer, respectively, liable to make good to his customer the amount of the instrument if he has paid it on a forged indorsement purporting to be that of the payce?

A. A promissory note is a written promise by one person (called the maker) to pay a certain sum of money at a specified time or on demand to another therein named (who is called the payee) or order, or to him or bearer. The maker of a promissory note is in a position similar to that of the acceptor of a bill of exchange, and is therefore the party primarily liable on the instrument; and, like a bill of exchange, the note is transferred by delivery, if payable to the party named, or bearer, or by indorsement and delivery if payable to him or order.

A crossed check is a bill of exchange, drawn on (but not accepted by) a banker by his customer, payable on demand, and bearing across its face two parallel transverse lines either with or without the words "and company" (or any abbreviation of those words), or the name of a banker between the parallel lines. The effect of this crossing is to make the bill payable only on presentation by a banker, and if it is crossed with the name of a particular banker, it is payable only on presentation by that banker. As a check is not accepted by the banker on whom it is drawn, the drawer is the party primarily liable on it. A check is transferable in the same way as any other bill of exchange. (See bills of exchange act, 1882, Pt. 3.)

A banker who pays a promissory note, bearing a forged indorsement, can not charge his customer with the amount, as no title can be made through a forgery (Robarts v. Tucker, 12 Q. B., 560); but the banker of the drawer of a check is protected by statute from liability for payment of the check on a forged indorsement purporting to be that of the payee. (16 and 17 Vict., c. 59, s. 19.)

Q. 5. Explain the nature of the contract of guaranty by reference to cases decided under the statute of frauds and Lord Tenterden's act.

A. The contract of guaranty is an undertaking to answer for the debt, default, or miscarriage of another person who is, and continues, primarily liable. If, therefore, the party on whose account the promise is made was not originally under any legal liability (as where credit was given to the promisor alone), or there is a transfer of his liability to the promisor, the contract is not a guaranty within the statute of frauds. Birkmyr v. Darnell (Salk., 27); Mountstephen v. Lakeman (L. R. 7, H. L. 17.) And in a contract of guaranty the promise must be made to a third person, i. e., the creditor; hence a promise to indemnify a person against a legal liability incurred by him is not a guaranty.

In Pasley v. Freeman (3 T. R., 51) it was held that a fraudulent representation made to induce a person to contract with a third party was not a guaranty, and therefore was actionable thongh not made in writing. But under Lord Tenterden's act (9 Geo. 4, c. 14) no action can be maintained on such a representation made concerning the character, credit, etc., of another, to the intent that the latter may obtain credit for money or goods, unless the representation be made in writing signed by the party to be charged therewith.

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