Rolt v Hopkinson

[177] rolt v. hopkinson. Before the Lord Chancellor Lord Chelmsford. Nov. 6, 8, 9, 1858. [S. C. 25 Bear. 461; 9 H. L. C. 514 ; 11 E. R. 829 ; 34 L. J. Ch. 468 ; 7 Jur. (N. S.), 1209; 5 L. T. 90; 9 W. R. 900. Followed, Daun v. City of London Brewery Company, 1869, L. R. 8 Eq. 155; Menzies v. Lightfoot, 1871, L.'R. 11 Eq. 465 ; Burgessv. Eve, 1872, L. R, 13 Eq. 459. See Damson v. Bank of Whitehawn, 1877, 4 Ch. D.' 639; London and County Banking Company v. Ratdiffe, 1881, 6 App. Gas. 726. Commented on and explained, Bradford Banking Company v. Briggs, 1885-86, 29 Ch. D. 149; 31 Ch. D. 25 ; 12 App. Gas. 29. Followed, Union Bank of Scotland v. National Bank of Scotland, 1886, 12 App. Cas. 53. See Government of Newfoundland v, Newfoundland Railway Company, 1888, 13 App. Cas. 212. Explained, West \*. Williams [1899], 1 Ch. 132. On point as to costs in House of Lords (9 H. L. C. 555), see Anderson v. Morrice, 1876, 1 App. Cas. 750.] Where there is a mortgage for present and future advances, and a subsequent mortgage of the same description, further advances made by the prior mortgagee, with notice of the subsequent mortgage, have no priority over antecedent advances made by the subsequent mortgagee. Gordon v. Graham, 2 Eq. Ca. Abr. [598], overruled. This was an appeal by the Defendants from a decision of the Master of the Rolls, holding that the Plaintiff, a first mortgagee, whose security extended to future srao.*j.ra rolt v. hopkinson 1237 advances, was entitled to priority over the Defendants, who were second mortgagees, in respect of advances made by the former, after he had notice of the security of the latter. The case is reported below in the 25th Volume of Mr. Beavan's Reports (page 461). The following statement of the facts of the case ia taken from the judgment of the Lord Chancellor. Mr. Mare was in extensive business as a shipbuilder at Blackwall. He had a banking account with the Commercial Bank of London, and also with private bankers, Messrs. Spooner, Attwoods & Co. The Commercial Bank had advanced to Mr. Mare various sums of money on the security of certain promissory notes made jointly by Mare and the Plaintiff (his father-in-law), and also of certain billa of exchange accepted by Mare and indorsed by the Plaintiff. These bills and notes were renewed from time to time, but were ultimately paid off by the Plaintiff. On the 6th January 1855, Mare executed a mortgage to the Palladium Company for the sum of 45,000. On the 26th January he executed a mortgage to the Commercial Bank. This mortgage recited the previous [178] one of the 6th January 1855. It further recited, that Mare had opened an account with the Commercial Bank, and that it had been agreed, in order to secure the sum then due, and which might from time to time become due from Mare on the balance of such account, not exceeding at any one time the principal sum of 20,000 (exclusive of any sum to be paid for insurance), that Mare should execute a mortgage of all and singular the hereditaments, policies and premises mentioned and comprised in the prior mortgage of the 6th of January 1855. The proviso for redemption was on payment by Mare, his heirs, executors, administrators or assigns, on demand, unto the Commercial Bank, of all and every sum and sums of money which then was or were or at any time and from time to time thereafter should or might become due or owing from or by Mare, his executors or administrators, to the Commercial Bank or the public officers or officer thereof for the time being, on the balance of his account current with the bank, or to the trustees or trustee for the time being thereof, either for money paid or advanced or to be paid or advanced by the Commercial Bank, or the trustees or trustee for the time being thereof, unto or on account of Mare, or what should be secured by any and every bond, bill of exchange or promissory note drawn, accepted, indorsed or made by Mare upon, to or in favour of the bank or any person or persons on behalf thereof, or accepted or paid by the said bank or trustees or trustee for honour on his account, or for or in support of his credit, or which should become due or payable from or by Mare, his heirs, executors or administrators, to the bank or any trustees or trustee, officers or officer for and on behalf of the same, upon any contract or in any other manner whatsoever, with interest for the same sums respectively from the several times at which they respectively should be advanced or paid, or at which the said [179] bonda, bills, notes or other contracts respectively should become due, after the rates therein mentioned. On the 12th February 1855, Mare executed a mortgage of that date to the Plaintiff. This mortgage recited, amongst other things, that the Plaintiff, at the request and for the accommodation of Mare, had for some time past been in the habit of accepting, drawing and indorsing bills of exchange, and had also been liable to pay, for or on account of Mare, divers sums of money ; and that the Plaintiff had, at the like request, agreed to offer Mare similar accommodation upon having such security executed to him as therein contained. By the...