has often been lamented (.); and Deposits are not favoured (y), especially when contradicting a written Instrument (2). It were well, perhaps, if no such Mortgages were permitted (a); they seem contrary to the spirit and the letter of the Statute of Frauds, which requires all Trusts, except implied Trusts, to be in Writing. If there are false and contradictory accounts as to what was the nature of the Deposit, it will be held to be no Lien (b).

If the Deposit is in the hands of a third person, it may be considered as a Deposit for the Creditor, provided such is proved to be the Intention (c). It is very delicate when the Deposit remains in the hands of the Mortgagor himself; and it seems questionable, whether a mere memorandum, kept in his own possession, and not parted with to the Man in whose favour it is expressed, or if Deeds were put into the hands of the Wife of the Mortgagor (d), it would take the case out of the Statute.

The Deposit of a mere Agreement gives an equitable Lien (e), and so does the Deposit of the Copy of a Court Roll (f).

An Assignment of Rents and Profits, or of Deeds, gives an equitable Lien, and entitles the Party to insist upon a Mortgage (g).

(z) Ex pa te Haigh, o Ves. 403; and see particularly Norris v. Wilkinson, 12 Ves. 199. (y) See 1 Meriv. p. 9. (z) Ex parte Combe, 17 Ves. 360.

(a) See 11 Ves. 403. S. C. MS. 12 Ves. 196. 14 Ves. 606. 1 Meriv. 9. Ex parte Warner, 19 Ves. 203.

(b) Anon. MS.

(c) See ex parte Whitbread, 19 Ves. 212.

(d) Vid. Ex parte Coming, 9 Ves 117.

(e) In Argo. ex parte War ner, 19 Ves. 403.

(f) Ibid. 202.

(g) Ex parte Willis, 1 Ves. jun. 162.

An equitable Mortgage by deposit of Title Deeds by an Accountant of the Crown, in the hands of one who had an opportunity of knowing that the Depositor is, or may become, a Debtor of the Crown, is not available against an Extent; and it has been doubted whether a Deposit by the King's Debtor is good, in any case, against the Crown (h); but it seems it is.

Sir Lloyd Kenyon, when Master of the Rolls, was of opinion that a mere Agreement to assign without a Deposit of Deeds would amount to an equitable Mortgage (i); but it has been held that a promise in writing to give a Security, by Mortgage of Lands when required, is upon the Party's death no Lien on his Real Estate (k).

An Equitable Mortgage will be made good as against Assignees (1).

In a case, where an Assignee bought the Bankrupt's Estate, and out of the Consideration-Money paid an Equitable Mortgage, and took the Deeds, which Sale was afterwards set aside on the known. principles of the Court (m), it was held that the Equitable Mortgagee did not lose his Lien (n).

Where a Lease was deposited to secure a Debt, the Depositary was, on a Bill filed by the Lessor,

(h) Broughton and another v. Davis and Attorney-General, Price, 1 Vol. p. 216. According to my MS. note of a case in the Exchequer in 1804, Rex v. Benson, it was held that a Deposit of Deeds as a Security prior to the Fiat of an Extent, is good against the Crown; and the Court held, that if one under Marriage Articles agrees

Crown could not take the
Estate.

(i) Hankey v. Vernon, 2 Cox, p. 14.

(k) Williams v. Lucas, 2 Cox, 160.

(1) Jones v. Gibbons, 9 Ves. 411. Pye v. Daubuz, 2 Dick.

759.

(m) See ante, p. 110, &c.
(n) Ex parte Morgun, 12

decreed to perform the Covenants, and take an Assignment, paying the Costs of it; and it was held he could not abandon it; for being entitled to a legal Conveyance, he is considered as having it (o); not, however, to all intents and purposes; for where there was a Covenant not to assign a Lease without the license of the Landlord, and the Lease was deposited as a Security for the Debt, Lord Eldon held the Deposit was not a Forfeiture, but that he could not order the Estate to be sold without the consent of the Landlord (p).

Before we conclude the subject of Mortgages it may be proper to consider the doctrine of Merger so far as regards them.

On this subject, the general Rule appears to be, that a Person becoming entitled to an Estate liable to a Charge (a Mortgage, for instance,) for his own benefit, may, if he chooses, at once take the Estate and keep up the Charge. Upon this subject a Court of Equity is not guided by the Rules of Law. It will sometimes hold a Charge extinguished where it would subsist at Law; and sometimes preserve it, where at Law it would be merged. The question is upon the intention, actual or presumed, of the Person in whom the Interests are united. In most instances it is, with reference to the party himself, of no sort of use to have a Charge upon his own Estate, and where that is the case, it will be held to sink, unless something shall have been done by him to keep it on foot (g). The Entry of a Devisee, having a Mort

(0) Lucas v. Commerford,

1 Ves. jun. 235. S. C. 3 Bro. C. C. 186.

(p) Ex parte Abdy, 13 Apr.

1813, mentioned 2 Christian's Bankrupt Law, p. 335.

(g) Forbes v. Moffat 18 Ves.

393, 1.

gage, will be presumed to be as Devisce, if no trace appears of any of the steps usually taken by a Mortgagee to get into Possession (r).

TRUSTS, created by Deeds, for the payment of Debts, or of Compositions for Debts, are frequent, and Courts of Equity will assist in the enforcement of Agreements for a Composition, if obtained without fraud, or misrepresentation (s). Underhand Agreements upon these occasions, have already been observed upon under the head of Fraud.

When a Man conveys Land for the payment of his Debts, and keeps possession of the Conveyance, it is considered as fraudulent (†).

An Assignment of all a Trader's Property, though for the benefit of all his Creditors, is an Act. of Bankruptcy, the reason being, that a Trader has not a right by deed to place his Property under a distribution different from that ordained by the Bankrupt Law (u). And though there be a provision in the Assignment of the whole, or nearly the whole, of a Trader's Estate and Effects, that the Deed is to be void if a Commission of Bankruptcy shall be taken out, or if all the Creditors whose Debts amount to 20%. do not sign within a given time, yet still such an Assignment, notwithstanding such condition, amounts to an Act of Bankruptcy (x).

(r) Ibid. 391.

(s) Pollend v. Husband, 1 P. Wms. 427. Cann v. Cann, 1 P. Wms. 727.

(t) Tarbuck v. Marbury, 2 Vern. 510.

148. Cook's Bankrupt Law, 5th edit. p. 89; and see Dutton v. Morrison, 17 Ves. 197. sed vid. Pickstock v. Lyster, 3 Maul. & Selw. 371.

(x) Dutton v. Morrison, 17

Indeed, the inconveniencies arising out of TrustDeeds by Traders, are such, that they are seldom or ever advisable (y).

It was the repeated doctrine of Lord Mansfield(z), that every act done with a view to defeat the Bankrupt Laws, by giving a preference to Creditors, is fraudulent and void, and if by Deed is an Act of Bankruptcy (a); but a Trader, it seems, may show a preference to particular Creditors, provided it is not done under the apprehension of Bankruptcy, and the property so conveyed does not exhaust the whole Estate, or what remains is not colourably left (b).

The Surrender of a Copyhold Estate in favour of a particular Creditor, is not an Act of Bankruptcy under the 1 Jac. 1. c. 15. s. 2, because it does not defeat or delay Creditors, the Copyhold being neither liable to a fieri facias, or to an elegit (c).

A. brought an Action against B. for Adultery with his Wife, and thereupon B. assigned his Estate to Trustees, in Trust to pay Debts mentioned in a Schedule, and such other Debts as he should name within ten days; and afterwards A. recovered 5,000l. damages, and filed a Bill to set aside the Deed, but it was held not be fraudulent; A. being no Creditor

(y) See on this subject 2 Christian's Bankrupt Law, 151. (2) Worsley v. De Mattos, 1 Burr. 467. Hague v. Rolliston, 4 Burr. 2174. Alderson v. Temple, 4 Burn. 2235. Harman v. Fisher, Cowp. 117. Rust v. Cooper, Cowp. 629. Hassell v. Simpson. Dougl. 89. S. C. 1 Bro. C.C.99. Devon v. Walls, Dougl. 86. Butcher v. Easts, Dougl. 294.

(a) See 2 Christian's Bankrupt Law, p. 128, and the distinctions there taken.

(b) Jacob v. Shepherd, 1 Burr. 478. Unwin v. Oliver, mentioned in 1 Burr. 481.

(c) Ex parte Cockshott, 3 Bro. C. C. 502; but see the observations on this decision 2 Christian's Bankrupt Law, p. 112.