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as to posses.
[purchaser] in fee simple in possession, free from incum- VIII. AC
knowledge brances, and particularly from the said mortgage debt of ment by
£- and all interest thereon, and all claims and demands Mortgagee, in respect thereof : AND WHEREAS the deeds and writings
of agreement specified in the schedule hereunder written relate not only to the premises conveyed by the said indenture of even date sion of deeds. herewith, but also to other hereditaments which still remain subject to the hereinbefore-recited indenture of mortgage; And it has been agreed between the parties hereto that the said [mortgagee] shall give the acknowledgment hereinafter contained, and that the said [mortgagor] shall enter into the covenants on his part also hereinafter contained : NOW THIS Acknowledge INDENTURE WITNESSETH that, in pursuance of the merteby mortsaid agreement, and in consideration of the premises, the said [mortgagee] hereby acknowledges the right of the said [purchaser] to production and delivery of copies of the several deeds and writings specified in the schedule hereunder written: And Covenant by
mortgagor. the said [mortgagor] hereby covenants with the said [purchaser] that he the said [mortgagor] will, at the request of the said (purchaser], or of any person or persons lawfully claiming under him execute and do all such acts and things as by him or them may reasonably be required for procuring the production and delivery of copies of the said deeds and writings by the said [mortgagee], or any other person having possession or control thereof from time to time; AND ALSO that, when and so soon hereafter as the said deeds and writings shall come into the possession or control of him the said [mortgagor], or any person or persons lawfully claiming under him, he or they will thenceforth keep the same deeds and writings safe, whole, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident. IN WITNESS, &c. (d).
THE SCHEDULE ABOVE REFERRED TO.
(d) The acknowledgment here given by the mortgagee, who Mortgagor retains possession of the documents, will run with the documents, cannot give and bind them in the hands of a transferee of the mortgage, or
ment. of the mortgagor, on payment off of the mortgage. A mortgagor is not in a position to give an undertaking, inasmuch as he does not "retain possession " of the documents ; he should, therefore, enter into a covenant as in the text. A deed stamp of Stamp. 108, will be required. .
Schedule of documents.
IX. ACKNOWLEDGMENT by a MORTGAGEE to
a MORTGAGOR of the Receipt of TITLE DEEDS (e). A SCHEDULE of the several deeds and writings this day delivered by [mortgagor], of, &c., to [mortgagee], of, &c., upon the execution of a mortgage of a certain leasehold messuage and premises situate at —, in the parish of in the county of for securing the payment by the said [mortgagor] of the sum of £ — and interest, at £- per centum per annum, unto the said [0
mortgagee]. 11th February, 1872.—Indenture of Lease made between A. B., of, &c., of the one part, and C. D., of, &c., of the other part.
22nd March, 1881.-Indenture of Assignment made between the said C.D., of the one part, and the said [mortgagor] of the other part.
15th October, 1883.-Indenture of Mortgage made between the said [mortgagor] of the one part, and the said [mortgagee] of the other part, for securing the payment of a sum of £ and interest at £4
per annum. I HEREBY ACKNOWLEDGE the several deeds and writings above mentioned were this day received by me, and are now retained by me in my possession (). Witness my hand this day of — 18
Acknowledge ment of receipt.
44 & 45 Vict.
(e) By sect. 16 of the Conveyancing Act, 1881, “A mortgagor, as long as his right to redeem subsists, shall by virtue of this Act be entitled from time to time, at reasonable times, at his request, and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf, to inspect and make copies, or abstracts of, or extracts from, the documents of title relating to the mortgaged property in the custody or power of the mortgagee."
It is now understood, that acceptance of goods to be kept generally, is merely an undertaking to keep them as the party receiving keeps his own : Hargr. Co. Litt. 89 a, (9). And the notion of Lord Coke, “ to keep and to keep safely, are one and the same thing” (Co. Litt. 89 a): Southcote's case, 4 Rep. 83 b, was denied to be law by the whole court, in the time of Chief Justice Holt: Coggs v. Bernard, 2 L. Raym. 911, 912; S. C., 1 Smith's L. C. 199. A depositary is responsible only for gross neglect; or, in other words, for a violation of good faith: and a depositary, whose character is known to his depositor, shall not answer for mere neglect, if he take no better care of his own goods, and they also be spoiled or destroyed. If such a deposit of title deeds as the above, without any express stipulation as to the degree of care, be looked upon as a pawn or pledge, a pawnee is
X. ACKNOWLEDGMENT of SATISFACTION as to
a Registered JUDGMENT (9). SATISFACTION is acknowledged between A. B. and C.D. as to a [here insert the judgment, lis pendens, &c.], dated the day of
18-for the sum of £ memorandum of which said (judgment, 8c.] was left with the Registrar of Judgments at the Central Office of the Supreme Court of Judicature, on the
day of -, 184, to affect the estate of
and [if so] on the writ of execution thereon, dated the
answerable only for ordinary neglect: Vere v. Smith, 1 Vent. 121. And if the pawnee, notwithstanding ordinary care, loses any of several articles pledged, he has a right to retain the residue for the whole of his debt: Ratcliffe v. Davies, Yelv. 178. But all bailees become responsible for losses by casualty or violence, after their refusal to return the things bailed, on a lawful demand : -Jones on Bailments, 42, 120, 121; Noy's Maxims, 215, 216, 9th ed.; see also Story on Bailments, SS 63, 64, 7th ed. The degree of care with which the bailee keeps his own goods is immaterial, except as an aid towards judging whether he has been guilty of gross neglect in respect of the goods deposited; the rule being that a gratuitous bailee is, in the absence of any Liability of stipulation to the contrary, liable for gross negligence, and for bailee for gross negligence only: Doorman v. Jenkins, 2 A. & E. 256; loss. S. C., 4 Nev. & M. 170; Beauchamp v. Powley, 1 M. & Rob. 38; Finucane v. Small, 1 Esp. 315; Gibbin v. MacMullen, L. R., 2 P. C. 317; Trefftz v. Canelli, L. R., 4 P. C. 277; see also Chanter v. Money, 12 Ir. C. L. 161. If the situation or profession of a party who gratuitously undertakes to do an act is such as to imply that he has skill in respect of that act, his omission to exercise that skill is in him gross negligence, although it would not be so in an ordinary person. Per Lord Loughborough, Shiells v. Blackburne, 1 H. Bl. 158. When the bailment is for reward, the bailee is bound to take the utmost care of the property: Re United Service Co., Johnson's Claim, L. R., 6 Ch. 212. Where it is for the benefit of both parties, as in the case of a hiring, depositing with an artisan, &c., he must use ordinary care : Dean v. Keate, 3_Camp. 4; Bringloe v. Morrice, 3 Salk. 271; Vere v. Smith, 1 Vent. 121; Clarke v. Earnshaw, 1 Gow, 30; Leck v. Maestaer, 1 Camp. 138.
See generally, on the question of bailment, the notes to the case of Coggs v. Bernard, in Sm. L. C. 199.
Where the chattel is lost out of the possession of a simple Rights of bailee without reward, it may be recovered in trover by either owner and
bailee after the owner or the bailee : Nicholls v. Bastard, 2 Cr., M. & R., posle Ex. 659.
As to the loss of mortgage or title deeds by a mortgagee, vide post, sub tit. MORTGAGES.
(9) This is the statutory form appended to the stat. 23 & 24 Vict. c. 115, as to which see ante, p. 107, sub tit. ABSTRACTS.
, in the
X. Acknow. a memorandum of which was left with the said Registrar on the
[or, the executor or administrator of] do
cution of this acknowledgment of satisfaction. Attestation(h)
Signed by the said
solicitor of the Supreme
A. B. above for and on behalf of the said
named [or, F.G., expressly named by
executor or adand attending at
ministrator of request to inform him of the
A. B.], dated nature and effect of this acknow
day ledgment of satisfaction (which
XI. ACKNOWLEDGMENT of TITLE 80 as to bar
the STATUTES of LIMITATIONS (i).
[Signature of Occupant.]
(1) Where the plaintiff is a solicitor it is not necessary for
Sect. 1.-0f Parol Agreements and the Statute of Frauds.
PAGE IV. STATEMENT OF CONSIDERATION
325 Sufficiency of Consideration.... 328 Certainty requisite as to the
Terms of the Agreement 330 V. DECLARATIONS OF TRUST,
WITHIN THE 7TH SECTION.. 331
when they arise, and how re-
PAGE I. ENACTMENTS OF THE STATUTE
OF FRAUDS : 29 Car. 2, c. 3..
272 Lord Tenterden's Act, 9 Geo. 4, c. 14
274 II. TO WHAT MATTERS THE STA
TUTE OF FRAUDS EXTENDS.. 276 Vacating Effect of the 4th Section 277 Parol Licenses
278 Assignment of Dower
282 Sales of Standing Crops, Fixtures, fc.
282 Agreements for Leases .. 291 Sale of Shares in a Company
292 Assignment of Vendor's Lien,
Mortgage Debt, fc. .... 294 Cases not within the Mischief of the Act :
295 Sales by Auction
295 Agreement admitted by the answer
295 Agreement part performed 296 Guaranty
302 Agreement not to be performed within the Year
303 Contract for the Sale of Goods 305 III. WHAT SIGNATURE IS SUFFICIENT
309 Signature by one Party only 310 Signature as Witness
317 Signature by Agent
319 Brokers ...
VI. PAROL EVIDENCE TO EXPLAIN
OR CONTROL WRITTEN IN.
344 Declarations at Auctions , 346 Evidence of Matters not within
the scope of the Instrument .. 347 Evidence to show Considera. tion
347 Evidence to vary a Writing as against third Persons
349 Part of the Agreement in Writing
... 351 Evidence of Fraud or Mistake .. 351 Evidence to assist Construction.. 360 Usage
363 Extrinsic Circumstances
366 Latent Ambiguity
367 Parol Variation or Waiver of an existing Contract
372 Variation of Contract within the Statute
373 Abandonment of Contract 379
Sect. 2.- Of Stamps on Agreements. Stamp Act, 1870, 33834 Vict.c.97 381 Re-stamping
393 Stamp governed by Effect of In- Alterations and Escrows ,
Sereral Stamps required when one What Agreements within the Act 383 Document comprises distinct Instruments executed Abroad .... 391 Transactions