A nude assignee of the Bill of Lading cannot sue in a Court of Common Law under the Statute 18 & 19 Vict. (1855), c. 111; nor in the Admiralty Court, under the Stat. 24 Vict. (1861), c. 10. The St. Cloud, Br. & Lush., Ad. Ca., 4.

S. 2. "Nothing herein contained shall prejudice or affect any right of stoppage in transitu, or any Right to claim freight against the original shipper or owner, or any liability of the consignee or indorsee by reason or in consequence of his being such consignee or indorsee, or of his receipt of the goods by reason, or in consequence of, such consignment or indorsement."

S. 3.-"Every Bill of Lading in the hands of a consignee or indorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods, or some part thereof, may not have been so shipped, unless such holder of the Bill of Lading shall have had actual notice at the time of receiving the same that the goods had not been in fact laden on board.

"Provided that the master or other person so signing may exonerate himself in respect of such misrepresentation by shewing that it was caused without any default on his part, and wholly by the fraud of the shipper, or the holder, or some person under whom the holder claims."

Where goods are at sea the parting with the Bill of Lading, which is the symbol of the goods, is parting with the ownership of the goods themselves: and this principle applies to goods which for the convenience of the parties have been landed at a sufferance wharf. (11 & 12 Vict. [1848], c. xviii., and 25 and 26 Vict. [1862], c. 63, s. 67.)

The Bill of Lading is a living instrument so long as the engagement of the shipowner has not been completely fulfilled, and the transfer of it for value passes the absolute property in the goods. And it has not been fulfilled so long as the goods, though landed at a wharf, are subject to a stop order.

The person who first gets the Bill of Lading (though only one of a set of three) gets the property in the goods it represents: he need not do any act to assert his title-which the transfer of the Bill of Lading itself renders complete: and any subsequent dealings with the others are subordinate to the rights passed by that one. Myerstein v. Barber, L. R., 2 C. P., 38; 661. 4 H. L., 317.

If Bills of Exchange are sent to be accepted and a Bill of Lading along with them to protect the Bills of Exchange, if the consignee refuses acceptance of the Bills of Exchange he cannot retain the Bill of Lading.

A Bill of Lading retained in such a manner conveys no property in the goods to an assignee of the Bill.

Shepherd v. Harrison, L. R., 4 Q. B., 196; 493. 5 H. L., 116.

Title Deeds taken as Security.

A banker frequently takes a deposit of Title Deeds by way of equitable mortgage to secure an advance. In all such cases he should have a written memorandum distinctly stating the purpose for which the deposit is made. A written memorandum of deposit is not, indeed, necessary, for there may be a valid deposit in equity without even a word spoken, when the possession of the securities cannot be accounted for in any other way, the holder being a stranger to the title and deeds (a). But it is laid down that if there is no memorandum of deposit, the Court leans against considering the deposit as security for an antecedent debt. (b)

(a) Bozon v. Williams, 3 Y. & J., 150.

(b) Ex parte Martin, 4 Deac. & Ch., 457.

If deeds are deposited with a person expressly as a security for a future advance, the creditor has no lien on them for an antecedent debt.

Mountford v. Scott, 1 Turn. & Russ., 274.

But if a banker has completed his equitable title by obtaining possession of the title deeds along with a memorandum stating the purpose of the deposit to be to secure payment of the mortgagor's antecedent debt and interest, as well as all future advances, he will be able to enforce his claim against all judgments of any sort recovered against the mortgagor after the date of the equitable mortgage.

Whitworth v. Gaugain, 3 Hare, 416, affirmed, 1 Phil., 728. Casberd v. Att. General, 6 Price, 411.

There must be an actual deposit of the title deeds to exclude the operation of the Statute of Frauds. An order to a third party to deposit a lease when executed is not sufficient.

Ex parte Perry, 3 M. D. & De G., 252.

An agreement to execute a mortgage with a delivery of the

title deeds to have the agreement carried out is an equitable mortgage from the date of the agreement.

Edge v. Worthington, 1 Cox, 211.
Hockley v. Bantock, 1 Russ., 141.

Ex parte Bruce, 1 Rose, 374. Keys v. Williams, 3 Y. & Col.,

C. C., 55. Bulfin v. Dunne, 12 Ir. Ch. Rep., 67.

To constitute an equitable mortgage it is not necessary that all the title deeds should be deposited, provided that real and material portions of them are.

Ex parte Chippendale, 1 Deac., 67. Lucas v. Allen, 26 L. J., Ch. 18. A memorandum accompanying title deeds stating the purpose for which they are deposited, is not an agreement for a mortgage and does not require to be stamped.

Meek v. Bayliss, 31 L. J., Ch. 448.

A verbal agreement to deposit a lease when executed is not an equitable mortgage.

Ex parte Coombe, 4 Madd., 249.

To create an equitable sub-mortgage by deposit of deeds originally deposited as an equitable mortgage it is not necessary to deposit with the second depositee the written memorandum deposited with the first.

Ex parte Abel Smith, 2 M. D. & De G., 587.

The expression "may advance" in the memorandum given with title deeds as an equitable mortgage may include past as well as future advances if it appears that the parties intended it.

Ex parte Farley, 1 M. D. & De G., 683. Ex parte Abel Smith, 2 M. D. & De G., 587.

A legal mortgage cannot be extended by parol (a): but an equitable mortgage may (b).

(a) Ex parte Hooper, 2 Rose, 328.

(b) Ex parte Langston, 1 Rose, 26. Ex parte Kensington, 2 Ves. & Bea., 79. Ex parte Lloyd, 1 Gl. & Jam., 389. Ex parte Nettleship, 2 M. D. & De G., 124.

An equitable mortgage is the same in effect as a legal mortgage, and a mortgagor will have six months to redeem.

Parker v. Housefield, 2 My. & K., 419. Thorp v. Gartside, 2 Y. & Col. Ex. Eq., 730. Meller v. Woods, 1 Keen, 16. But see 15 & 16 Vict. (1852), c. 86, s. 48.

An equitable mortgagee by deposit of a lease is not compellable to take a legal assignment of the lease at the suit of the lessor, even though he has entered into possession of the premises and paid rent: nor is he liable to the lessor upon the covenants of the lease, as there is no privity of contract between him and the lessor. Moore v. Greg, 2 Phil., 717.

If deeds are deposited with a person as an equitable mortgage, they are not to be considered as an equitable mortgage for a loan by another person, without a memorandum in writing.

Ex parte Whitbread, 1 Rose, 299.

A person conveyed certain property to trustees by a post nuptial settlement. Having obtained the deeds from the trustees, he deposited them with his bankers as an equitable mortgage for a loan. Held that the banker was not a purchaser within 27 Eliz. (1585), c. 4, s. 2, and the trustees were entitled to recover the deeds.

Kerrison v. Dorrien, 9 Bing., 76.

A conveyance of a house and furniture was deposited as a security for a debt, with a memorandum stating that it was the deposit of the title deeds of an estate. Held that this was not an equitable mortgage of the furniture: if the intention had been to include the furniture, it should have been so stated in the memorandum, and a schedule of the articles given (a).

But when the lease of a house was deposited as an equitable mortgage, and the premises were sold along with the goodwill of the business carried on on the premises; and the produce of the sale of the lease and goodwill was insufficient to satisfy the debt, the depositee was held entitled to the whole of the proceeds, as the goodwill was the incident of the lease (b).

(a) Ex parte Hunt, 1 M. D. & De G., 139.

(b) Chissum v. Dewes, 5 Russ., 29.

A mortgagor granted a mortgage to secure an antecedent debt and future advances to a limited amount: he then granted a second mortgage of the same property to another person on similar terms: each party was aware of the mortgage of the other. The first mortgagee made advances to the mortgagor after he was aware that the second mortgagee made advances to him on the security of the second mortgagee: he cannot claim that the advances which he had made subsequently to this knowledge should have priority over the advances made by the second mortgagee.

Hopkinson v. Rolt, 9 H. L. Ca., 514.

A misdescription of the mortgagor's interest in land will not invalidate an equitable mortgage.

Ex parte Glyn, 1 M. D. & De G., 29.

VOL. II.

2 F

An equitable mortgage may be created by a deposit of copy of Court Roll.

Ex parte Warner, 19 Ves., 202. Winter v. Lord Anson, 3 Russ., 493. Whitbread v. Jordan, 1 Y. & Coll., Ex. Eq., 303. Tylee v. Webb, 6 Beav., 552.

If deeds including several estates are deposited as an equitable mortgage with a memorandum specifying only one as mortgaged, it is not a mortgage of the other estates mentioned in the deeds. Wylde v. Radford, 33 L. J., Chanc., 51.

If a trustee fraudulently deposit title deeds as an equitable mortgage, the trust will prevail over the mortgage.

Manningford v. Toleman, 1 Coll., 670. Baillie v. McKewan, 35 Beav., 177.

On the relation of a Banker to his Customer as WAREHOUSEMAN of his Plate, Jewels, Specie, Deeds, Securities, &c.

8. Besides receiving money and securities from their customers in the way of banking business, bankers also receive from their customers chests of plate, jewels, specie, deeds, securities, &c., as mere DEPOSITS for the sake of safe custody in their strong rooms. In this capacity they act simply as WAREHOUSEMEN for their customers, and no property of any description passes to them in the goods deposited.

The banker makes no charge for such a deposit, he is therefore a gratuitous Bailee: and he is not liable for any loss that may occur by the dishonesty of a clerk or servant, provided that he was not aware of his servant's dishonesty, and that he exercises that degree of care and diligence which men of prudence would do in their own affairs.

Giblin v. McMullen, L. R., 2 P. C., 317; 38 L. J., P. C., 25.

A banker misappropriating any such deposits to his own use would be indictable under the Larceny Act 24 & 25 Vict. (1861), c. 96, s. 75.

On a Banker's Lien on his Customer's Securities..

9. A banker's general LIEN is part of the Law Merchant, and is judicially noticed as such.

Brandao v. Barnett, 12 C. & F., 787. Bock v. Gorrisson, 2 De G. F. & J., 434. Jones v. Peppercorne, Johns., 430.

A banker has a general Lien upon all Banking, or Paper