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In the cases to which I have referred, the securities were held not to be property in the places where the securities were, but choses in action and evidences of property existing elsewhere; and the distinction attempted to be made in this case, between securities which pass by delivery and those which require something more than delivery, has not been observed. Lord Eldon (a) said, that he did not know why, in these cases, bank notes were considered as cash, for he thought them just in the same situation as promissory notes and securities, which were the evidences of title to things out of the place. Perhaps the reason might be found, in the common habit of men to speak of Bank notes as cash, and the manifest defeat of their testamentary intentions, which would be the effect of the Court not so considering them; but be this as it may, I consider myself bound by authority, and that choses in action do not pass under the words "goods and chattels" in a particular locality.

I do not think that the securities can be considered as money or cash, and the words "et cetera" which were relied on in argument, can only be extended to things which the testator was possessed of at Milan, or in Lombardy; and the authorities determine that, in such cases, choses in action (except bank notes) are not considered as having the locality of the places where the securities are. Being of opinion that, in that sense, the certificates and bordereaux are choses in action evidences of title to property elsewhere-I think that they did not pass by the codicil, and that the exception to the Master's report must be allowed.

NOTE.The parties appealed to the Lord Chancellor.

(a) 11 Ves, 662,

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1843.

The Marquis of HERTFORD

v.

Lord LOWTHER.

1843.

Nov. 6.

Dec. 22.

A Plaintiff examined a Defendant as a witness in the cause. Held, that such Defendant was, on that ac

IN

YOUNG v. ENGLISH.

N the year 1835, the Defendant English, who was entitled to a leasehold house and premises in St. James's Street, borrowed 8007. from the Plaintiff Young, on the security of certain promissory notes, a warrant of attorney to confess judgment, and an agreement that English would, at a future time, deliver up to him the count, entitled lease and other deeds belonging to the premises.

to his costs of

suit.

A. B., an equitable

mortgagee, lent the title

deeds to C. D., the mortgagor, to enable him to

arrange a sale of the pro

was indebted

to A. B., both on the mort

gage and on a trade account.

Pur

suant to the agreement, the lease and deeds were actually delivered to the Plaintiff in the year 1837, and 2001., part of the debt, being afterwards paid, the Plaintiff remained equitable mortgagee of the premises for the sum of 600l. and interest.

The Defendant English carried on the business of an perty. C. D. hotel keeper upon the premises, and the Plaintiff, being a wine and spirit merchant, supplied English with goods, in respect of which, a debt became due to him in addition to the mortgage. In 1840, the Plaintiff having the lease and other deeds as equitable mortgagee for 600l. and interest, and being also a creditor of English for goods sold and delivered, the trustees for the Conservative Club, who were Defendants, by their solicitors, of his having applied to English to dispose of his interest in the lease, and give up his business as an hotel keeper, in order

C. D. paid to
A. B. a part

of the produce

of the sale;

but there was no evidence

made any

that the house might be converted into a club house;

and

express ap propriation of that payment. Held, that it must be understood that the payment was made on the mortgage account, and that A. B. had no right to appropriate it to the trade account.

A mortgagor, who had borrowed the title deeds from an equitable mortgagee, to enable him to sell the property, handed them to his solicitor, in order to complete. The mortgagee acquiesced in the sale. Held, that the solicitor had a lien on the deeds for his costs of the transaction only, but not for his other claims for costs against the mortgagor.

and after some treaty, English agreed to this, in consideration of the sum of 1150l. to be paid him.

Upon the terms being agreed to, English desired the Defendant Mr. Henry Walker, whom he employed on other occasions as his solicitor, to act for him in completing the sale. Mr. Walker stated that he should want the lease and title deeds; English undertook to procure them, and he accordingly applied to Mr. Farrell, an agent of the Plaintiff, in whose possession the deeds were, for a loan of them for two or three days; and the Plaintiff having consented to lend them on terms, they were, on the 3d day of November 1840, placed in the hands of English, upon his signing and delivering to Farrell a memorandum dated on the same day, and in these words: "I hereby acknowledge to have received from you the different deeds hereafter specified, relating to my house, the St. James's Royal Hotel, 88. St. James's Street, which I undertake to return safe, on or before Friday next, the 6th of the present November." At the foot of the memorandum was a list of the deeds, and to the list was subjoined this note:"The whole of the above documents being in deposit with Mr. Young (the Plaintiff), as securities for monies advanced to me (English), and yet remaining unpaid."

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English having thus obtained the deeds, carried them to Walker, and gave him instructions to do what was necessary for carrying the sale into effect.

Mr. Walker, by his answer, which had not been replied to, said positively, that at the time when the deeds were so delivered to him, English did not inform him, nor did he know, or in any way suspect, that the Plaintiff, or any other person, had any equitable or other mortgage on

1843.

YOUNG

v.

ENGLISH.

the

1843.

YOUNG

v.

ENGLISH.

the premises, or any lien or claim on the deeds relating thereto.

Mr. Walker prepared the abstract of title from the deeds, communicated with the solicitors of the purchasers, and on the 16th day of November 1840, the agreement in writing for the sale was settled and approved.

In the mean time, English had not performed his undertaking to return the deeds to the Plaintiff; and having stated (when he was applied to on the subject) that he had delivered them to Walker, the Plaintiff became alarmed, and on the 13th of November, Messrs. Wood and Ellis, his solicitors, wrote to Walker as follows: "We find that Mr. Young has allowed Mr. English of the St. James's Hotel, to have the deeds of that house, for the purpose of enabling you, as his solicitor, to prepare and settle an agreement for the disposition of the residue of the term therein. Under these circumstances, it is right that Mr. Young should have your acknowledgment that you hold them for him, subject to immediate return to him on demand, in order that no doubt or difficulty may hereafter arise, by reason of the special accommodation so offered to Mr. English. We shall be obliged, therefore, by the receipt of such acknowledgment and undertaking, in due form, at your earliest convenience."

Mr. Walker did not, upon the receipt of the letter, appear to have made immediate enquiries into the foundation of the Plaintiff's claim. If he had done so, he would then, at least, have known that the Plaintiff was clearly entitled as equitable mortgagee, and that the purchase-money ought to be applied in satisfaction of

his debt.

Instead

Instead of making any such enquiry, Mr. Walker returned a very unsatisfactory answer to the letter of Wood and Ellis. English misrepresented the real facts of the case, and apparently misled Mr. Walker as well as the Plaintiff, by telling the former that he had satisfied the latter. Mr. Walker, notwithstanding the letter of the 13th of November, and another letter, dated the 16th of November, which he received from Wood and Ellis, proceeded to the completion of the agreement with the trustees of the Conservative Club, without paying any regard to the claim of the Plaintiff. The agreement was engrossed; it was executed by English; the sum of 300/. was paid to English in part of the purchase money, and the purchasers were let into possession on the 18th day of November. By the agreement, the sum of 300l., further part of the purchase money, was to be paid on the 20th of January 1841, and the remainder, being 550%., on the 29th of September 1841, and Mr. Walker signed an undertaking to deliver up the title deeds on the execution of the assignment. English, notwithstanding his having misrepresented some of the facts, called on the Plaintiff and paid him the 3007. which he had received as the first instalment of the purchase money; but on the 23d of January 1841, English received the second instalment of 300l. and then absconded.

This bill was filed on the 2d of March 1841, and prayed that the Plaintiff might be declared to have a lien upon the unpaid purchase money, for the amount of what is due to him; and that he might be declared to have been entitled to apply 300l. (part of the purchase money which had been paid to him) towards the discharge of a book debt; that accounts might be taken of the purchase money unpaid, and of what remained due to him; that the purchasers might be declared not to be entitled to a sum of 67l. 2s. 5d., which they claimed in

respect

1843.

YOUNG

v.

ENGLISH.

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