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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).


(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.

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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

[Mortgagee's signature.]

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per centum

Acknowledge ment of receipt.

44 & 45 Vict.
c. 41, s. 16.
Power for
to inspect


(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





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

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day of


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.

day of

, in the


X. Acknow. a memorandum of which was left with the said Registrar on the
ledgment of
Satisfaction of

18Judgment. And

[or, the executor or administrator of] do
hereby expressly nominate and appoint of
solicitor [or, attorney-at-law], to witness and attest the exe-

cution of this acknowledgment of satisfaction. Attestation(h)

Signed by the said
presence of me, the undersigned,

solicitor of the Supreme
Court, and I hereby declare
myself to be the solicitor

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


I accordingly did before the same
was signed by -), and I
also declare that I subscribe my
name as witness hereto as such

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I [occupant], of, &c., do hereby admit and declare that I
am now in possession (or in receipt of the rents and profits
of], all that messuage, &c. [describe parcels], with the
appurtenances, situate at in the county of
by the sufferance and permission of

esquire, and subject to the title of the said

whom I now hold the same.
Dated this

day of

18To esquire.

[Signature of Occupant.]

(1) Where the plaintiff is a solicitor it is not necessary for
another solicitor to attest the acknowledgment: the attestation
may be by his clerk or any other

(*) No stamp is required : Barry v. Goodman, 2 M. & W. 768.



Sect. 1.-0f Parol Agreements and the Statute of Frauds.


325 Sufficiency of Consideration.... 328 Certainty requisite as to the

Terms of the Agreement 330 V. DECLARATIONS OF TRUST,

Implied or Resulting Trusts,

when they arise, and how re-



OF FRAUDS : 29 Car. 2, c. 3..

272 Lord Tenterden's Act, 9 Geo. 4, c. 14


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

315 Letters

317 Signature by Agent

319 Brokers ...

322 Auctioneers





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

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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 ,

393 strument


Sereral Stamps required when one What Agreements within the Act 383 Document comprises distinct Instruments executed Abroad .... 391 Transactions


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