TABLE OF RULES OF THE SUPREME COURT. N.B.-The figures printed in dark type denote the pages at which the rules referred to are cited verbatim. Order III. (Indorsement of claim)— r. 6 (special indorsement), 686, 687, 815, 940, 977, 1040. VIII. (Renewal of writ)— r. 1 (original writ in force for twelve months), 1085. XI. (Service out of jurisdiction), 1007. XIII. (Default of appearance) r. 3 (liquidated demand indorsed), 1040. XIV. (Leave to sign judgment, &c.)— r. 1 (judgment on writ specially indorsed), 686, 687, 940, 977, 1040. XV. (Application for account) r. 1 (order for account), 755, 1040, 1046, 1158. r. 2 (application, how made), 1046. XVI. (Parties)— r. 6 (joinder of persons severally or jointly and severally liable), 984. r. 8 (trustees, executors, &c., may sue and be sued as representing estate), 742, 1026, 1140. r. 9 (numerous persons), 1033, 1139, 1140. r. 11 (misjoinder and non-joinder), 983, 1033, 1035. (consent of plaintiff or next friend), 652. r. 55 (defendant claiming against co-defendant), 103, 1161. XVII. (Change of parties by death, &c.)— r. 1 (action not abated where cause of action continues), 654, 1343. r. 2 (in case of marriage, &c., husband, &c. may be ordered to be made a party or served with notice), 356. r. 3 (in case of assignment, &c., pendente lite, action may be continued), 654. r. 4 (order to carry on proceedings, 654, 1035. XVIII. (Joinder of causes of action)— r. 2 (recovery of land), 748, 752, 1039, 1067. r. 4 (husband and wife), 356. XIX. (Pleading generally)— r. 3 (set-off and counterclaim), 751. r. 15 (grounds of defence, &c. to be raised), 66, 751, 752, 1043, 1082, 1324. r. 19 (negative pregnant), 1325. r. 23 (notice), 1324. r. 27 (striking out pleadings), 653. Order XX. (Statement of Claim)— r. 4 (claim beyond indorsement), 1040. XXV. (Proceedings in lieu of demurrer), 752, 1324. r. 15 (setting aside judgment by default), 165. XXXII. (Admissions), 1043. XXXIII. (Issues, inquiries and accounts)— r. 2 (inquiries and accounts, when directed), 1158, 1229. r. 5 (surcharge), 1163. r. 8 (just allowances), 280, 1210. XLI. (Entry of judgment)— r. 5 (judgment to state time within which act to be done), 972. XLII. (Execution)— r. 5 (enforcement of judgment for delivery of land), 1066. r. 7 (enforcement of judgment to do or abstain from act), 972. r. 17 (time to sue out execution on judgment), 236. XLIII. (Writs of fi. fa., elegit and sequestration)- XLVI. (Charging orders, distringas, stop orders) r. 1 (application for and effect of charging order), 1379. r. 2 (writ of distringas not to issue), 1294. r. 3 (meaning of "company" and "stock"), 1295, 1383. r. 4 (filing and service of affidavit and notice as to stock), 1294. r. 8 (effect of service of affidavit and filed notice), 1295. r. 9 (withdrawal or discharge of notice), 1295. r. 10 (effect of request for transfer of stock), 1295. r. 11 (amendment of description of stock), 1295. r. 12 (costs occasioned by stop orders), 1300. XLVII. (Writ of possession) r. 1 (writ of possession for recovery of land), 816, 963. r. 2 (proof of service of judgment, and default), 963. XLVIII. (Writ of delivery), 965. L. (Interlocutory orders)— r. 6 (application under Judicature Act, 1873, s. 25 (8)), 945. r. 8 (order for recovery of specific property subject to lien), 1068. r. 16 (receivers-security by and allowance to), 961, 974. r. 17 (adjournment into Chambers to give security), 961. r. 18 (passing accounts and paying balances), 972. r. 19 (form of accounts), 972. r. 20 (leaving account with affidavit), 972. r. 21 (consequences of default by receiver), 972. Order LI. (Sales by Court) r. 1 (power of Court to order sale), 1127. r. 1A (mode of carrying out sale, &c.), 1060. r. 1B (power to make order for sale in debenture-holders' LIV. (Applications and proceedings at Chambers)— LIVA. (Declaration on originating summons) r. 1 (power to make declarations on summons), 676. r. 2 (petitions), 1451. LV. (Chambers in the Chancery Division) r. 2 (business to be disposed of in Chambers), 960, 968. r. 3 (originating summonses relating to express trusts, &c.), 415, 550. r. 4 (order for administration of estate of deceased, &c.), 415, 1124. r. 5A (originating summons for foreclosure, &c.), 749, 944, 1041, 1046. r. 4 (recognizances in Chancery Division), 961, 975. LXI. (Central Office)— r. 14 (enrolment of recognizance), 961. r. 26 (memorandum of satisfaction of bill of sale), 267. r. 27 (order for memorandum of satisfaction), 267. LXIV. (Time)— r. 13 (length of notice after delay of one year), 1064. LXV. (Costs) r. 1 (costs to be in the discretion of the Court), 1195. LXXI. (Interpretation)— r. 1 (interpretation of terms-"receiver," &c.), 957. A TREATISE ON THE LAW OF MORTGAGES. Part I. OF DIFFERENT KINDS OF MORTGAGES, AND OF INSTRUMENTS CHAPTER I. OF MORTGAGES AT COMMON LAW. vadium. i.—Vivum vadium.-The common law recognised two kinds of Distinction landed security, viz., vivum radium and mortuum vadium. The vadium and vivum vadium and also the mortuum vadium (according to Glan- mortuum ville), as at first known, were determinable or base fees, with a right of reverter in the feoffor and his heirs, on the payment of a given sum. The mortuum vadium, or mortgage ultimately known at the common law, was an absolute fee, with a condition annexed, making void the feoffment on payment of a given sum, which the common law allowed, if reserved to the feoffor or his heirs. The difference between the estates was striking. In the first instance the creditor took an estate, which, as soon as his debt was satisfied, ipso facto ceased, and the feoffor might re-enter and maintain ejectment; in the latter instance the feoffee took the whole estate, subject to be defeated, but which, on the non-fulfilment of a certain engagement, became his own by an indefeasible title. In the first case the defeasibility was an inherent quality of the estate; in the other case the determination was collateral to it. VOL. I.-C. 103 B Chap. I. (i.) Nature and The virum radium consisted of a feoffment to the creditor and his heirs, until out of the rents and profits he had satisfied himself his debt; the creditor took actual possession of the effect of vivum estate, and received the rents, and applied them from time to time in liquidation of the debt. When it was satisfied, the debtor might, as before observed, re-enter and maintain ejectment; and it is said to have been called vivum vadium because neither debt nor estate was lost. vadium. Analogy between ancient mortgages and Welsh mortgage. This mode of security was probably never general; it is ill adapted to the purpose of a security, the object of which is the common law repayment of the loan in one entire sum at a given time, and not a repayment by small instalments, which in fact is eating out the debt piecemeal; and it seems now to have entirely ceased. A security in land, bearing a remote resemblance to the vivum vadium, may be considered as subsisting under the appellation of Welsh mortgage; but there is this distinction between the securities, viz., that in the vivum vadium the rents were applied in satisfaction of the principal, and in Welsh mortgages they are received in satisfaction of the interest, while the principal remains undiminished. In one respect they agree -the estate is never forfeited. The Welsh mortgage seems in fact more closely to resemble the ancient mortuum vadium (a). Original form of mortuum vadium. ii.-Mortuum vadium.-The mortuum vadium, or mortgage, is mentioned by Littleton, Coke, and others, as so called because on breach of condition the estate was rendered indefeasible in the mortgagee, and absolutely lost to the mortgagor. In this light it is placed by Lord Coke, in contradistinction to the vivum vadium, and such seems to be the opinion generally adopted. But Glanville gives a different meaning to the origin of the term. He says, He says, "Mortuum vadium dicitur illud cujus fructus vel redditus interim percepti in nullo se acquierant; and applies it to the before-mentioned species of usury at common law, viz., a feoffment to the creditor and his heirs, to be held by him until his debtor paid him a given sum, and until which he received the rents without account, so that the estate was unprofitable or dead to the mortgagor in the meantime; and the exposition given by Glanville seems the more sound, as it was rendered at a very early period of our history, while as yet the fetters on alienation were unremoved. We may there (a) See post, p. 30. |