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PREFERMENTS AND MEMORANDA.
In Michaelmas Sittings, 1894, Mr. EDWARD T. E. BESLEY, of the Middle Temple; Mr. JAMES JARDINE, of the Inner Temple; Mr. VERNON RUSSELL Smith, of the Inner Temple; Mr. ROBERT WALLACE, of the Middle Temple ; Mr. William MULHOLLAND, of Lincoln's Inn; Mr. REGINALD JOHN SMITH, of the Inner Temple ; and Mr. RICHARD READER HARRIS, of Gray's Inn, were appointed Her Majesty's Counsel learned in the law.
In Hilary Sittings, 1895, Mr. Louis ADDIN KERSHAW, of the Inner Temple; Mr. RICHARD BRAMWELL Davis, of the Inner Temple; and Mr. Thomas ROLLS WARRINGTON, of Lincoln's Inn, were appointed Her Majesty's Counsel learned in the law.
In Easter Sittings, 1895, the Right Hon. Earl OF SELBORNE died.
In the Vacation following Easter Sittings, 1895, the Right Hon. Sir JAMES Bacon died.
In Trinity Sittings, 1895, the Right Hon. Lord HERSCHELL resigned the office of Lord High Chancellor.
The Great Seal was, for the third time, delivered to the Right Hon. Lord HALSBURY.
In the same Sittings Sir ROBERT THRESHIE REid resigned the office of Her Majesty's Attorney-General, and was succeeded by Sir RICHARD EVERARD WEBSTER, Q.C.
In the same Sittings Sir Frank LockwooD resigned the office of Her Majesty's Solicitor-General.
In the same Sittings Mr. ERNEST CARPMAEL, of the Middle Temple; Mr. EDMUND ROBERTSON, of Lincoln's Inn; Mr. HERBERT WILLIAM LUSH-Wilson, of the Inner Temple; Mr. John VESEY VESEY FITZGERALD, of the Inner Temple; Mr. JAMES WINTERBOTHAM HAMILTON, of the Inner Temple ; Mr. HENRY YORKE STANGER, of Lincoln's Inn; Mr. ALFRED HENRY RUEGG, of the Middle Temple ; Mr. WILLIAM FRANCIS KYFFin Taylor, of the Inner Temple ; Mr. Thomas TERRELL, of Gray's Inn; Mr. HARRY TRELAWNEY Eve, of Lincoln's Inn; Mr. John MEIR ASTBURY, of the Middle Temple; Mr. LEWIS EDMUNDS, of the Inner Temple ; and Mr. JAMES ALEXANDER RENTOUL, of the Inner Temple, were appointed Her Majesty's Counsel learned in the law.
In the Long Vacation, 1895, Mr. ROBERT BANNATYNE Finlay, Q.C., was appointed Her Majesty's Solicitor-General.
CASES ARGUED AND DETERMINED
In the House of Lords
(ON APPEAL FROM THE COURT OF APPEAL IN ACTIONS
IN THE CHANCERY DIVISIOM),
JAMES EYRE THOMPSON,
Her Majesty's Court of Appeal
(ON APPEAL FROM THE CHANCERY DIVISIOM),
LIONEL LANCELOT SHADWELL, HARRY BAIRD HEMMING, AMYAND JOHN HALL, and HENRY CHARLES ROPER,
AND IN THE
THE HIGH COURT OF JUSTICE,
ARTHUR CORDERY, JAMES E. HORNE, REGINALD BRODRICK SCHOMBERG, JOHN FRANCIS WAGGETT, HENRY FREDERICK AMEDROZ, AMYAND JOHN HALL, AUBREY JOHN SPENCER, FRANCIS GOULD, and HENRY CHARLES ROPER,
MICHAELMAS 1894 TO MICHAELMAS 1895.
58 & 59 VICTORIÆ.
[IN THE HOUSE OF LORDS.]
THE HOUSE (LORD HERSCHELL, LC., 1894. THORNE (appellant) v. CANN LORD Watson, and LORD MacnaghTEN), Nov. 16, 19.) (respondent). without calling upon counsel for the reMortgage-Subsequent Incumbrance
spondent, affirmed the decisions of the Court Transfer of First Mortgage - Previous
OF APPEAL and of RomER, J., and held
that there was no merger of A's mortgage Purchase of Equity of Redemption by Transferee-Intention to keep First Mort
with the equity of redemption purchased by
the solicitor, and that it retained its priority gage on Foot - Priorities-- Merger.
over the appellant's mortgage. The doctrine A solicitor acted for all parties in a suc- of Toulmin v. Steere (3 Mer. 210) did not cession of mortgage transactions. Mort- apply. gages were executed, to secure 1,0001., in The question whether it is intended to favour of A. There was a subsequent keep a charge alive is one of intention to be mortgage to the appellant. The solicitor gathered not only from the written instrugare an undertaking in each case either
ments, but from the circumstances of the himself to take a transfer of the mortgage case. The intention may be presumed from or to make good any deficiency which might the consideration whether it is or is not for arise on realisation. The mortgagor became the benefit of the owner of the charge that it bankrupt, and the solicitor bought the should be kept alive. equity of redemption from the trustee in Per LORD MacNAGHTEN.--The authority bankruptcy. A required repayment. The of Toulmin v. Steere cannot nowadays be solicitor, not having a client at the moment considered as going beyond the actual willing to advance the money and take a decision. Whether it would be regarded as transfer, obtained a special advance from a binding authority in a case on all-fours his bankers, as he had done on similar with it, except in a Court of first instance, occasions previously, and paid A, who is at least doubtful. executed a transfer of the mortgage to him, which he deposited with the deeds at the Appeal from an order of the Court of bankers'. Some months afterwards the re- Appeal (Lindley, L.J., Kay, L.J., and spondent advanced 9001., and took from the Smith, L.J.), made on the 15th of solicitor an assignment of the security. January, 1894, which affirmed a deciVOL. 64.-CHANC.
THORNE v. CANN, H.L. sion of Romer, J., of the 25th of April, which James Piller mortgaged the said 1893.
hereditaments to the appellant's testator The action, in which the respondent for 6001.; sixthly, an agreement in was plaintiff, and Henry Thorne, the writing dated the 23rd of February, 1886, appellant's testator, was defendant, was between the trustee of James Piller, who one for specific performance of an agree- had been adjudged bankrupt on the 26th ment dated the 2nd of June, 1892, for the of August, 1885, and James Searle, for sale by the respondent to the appellant's the sale to Searle of the equity of retestator of certain freehold hereditaments demption in all the mortgaged properties in the county of Devon. The respondent of the bankrupt in consideration of 2501. claimed to sell as mortgagee under a power There was also a mortgage by Piller to of sale. Henry Thorne, the appellant's John Forward for 1501. dated the 28th of testator, disputed the title, and by way of September, 1880. Searle gave undercounterclaim alleged that a mortgage of takings or guarantees in writing, at the his own had priority over any charge of time of the several mortgage transactions, the respondent's, and claimed that the con- to Forward, Miss Arnold, the respondent, tract for sale should be rescinded and the and the appellant's testator, to take a deposit repaid to him.
transfer of each security after the expiraThe material facts are stated in the Lord tion of three or six months' notice, or to Chancellor's judgment, and it is only make good any deficiency which might necessary to give the dates and particulars arise on realisation. of the following deeds: first, a mortgage The money with which Searle paid off dated the 3rd of May, 1880, by James Miss Arnold's mortgage for 1,0001. was Piller to Edwin Rendells for 3001. ; obtained from his bankers, the Devon and secondly, an indenture of the 29th of Sep- Cornwall Bank, with whom he deposited tember, 1882, to which J. Piller was a the deeds and documents relating to the party, by which the mortgage to Rendells
mortgaged property, and a memorandum was transferred to Jane Owen Arnold, and of agreement to execute a legal mortgage a further charge for 7001. granted to Miss to the bank when required so to do. Arnold, with a stipulation that the pro- Searle became bankrupt in February, perty should stand as security for both 1892. sums, and that the powers and provisions The sole question was whether the contained in the mortgage of the 3rd of mortgage for 6001. in favour of the appelMay, 1880, should extend to the further lant's testator had or had not priority over sum of 7001.; thirdly, an indenture dated
the mortgage for 1,0001. vested in the the 18th of May, 1888, purporting to be respondent. It was contended by the a transfer of the whole mortgage debt of appellant that it was not competent to 1,0001. to James Searle; fourthly, an in- James Searle to take a transfer to himself denture dated the 22nd of June, 1888, of Miss Arnold's mortgage so as to keep purporting to be a transfer to the respon- it alive against subsequent incumbrances. dent by James Searle of the mortgage debt of 1,0001. as one debt, in consideration of
Cozens-Hardy, Q.C., and W. F. Phill9001. paid by the respondent to J. Searle : this indenture recited the indentures of potts, for the appellant. — The appellant is
not driven to rely upon Toulmin v. the 3rd of May, 1880, the 29th of Sep
Steere (1). His case is established by the tember, 1882, and the 18th of May, 1888,
principle expressed by Knight-Bruce, L.J., and was expressed to be subject to the
in Watts v. Symes (2), “ that a person who equity of redemption then subsisting in
borrows money cannot be his own creditor, the premises under the indentures of the
or set up an incumbrance of his own 3rd of May, 1880, and the 29th of Sep. against his creditor."
against his creditor.” So in Otter v. Lord tember, 1882, but with the full
of sale and other powers contained in the
(1) 3 Mer. 210. said indentures; fifthly, an indenture
(2) 1 De Gex, M. & G. 240; 21 Law J. Rep. dated the 29th of September, 1882, by Chanc. 713.