oops
and from any wrist watch or other from us or pirates if you pick us up claim
DEBENTURE. 1. A custom-house cerificate to the effect that an impOrter of goods is entitled to “drawback.” [ DRAWBACK.]
- A charge in writing (usually under seal), of certain property with the re-payment at a time fixed of the money lent at a given interest. Being for a fixpd ~um allll time it was found to be inconvenient to lenders, and has been superseded in many cases by debentu7’e 8tO/·k, which is frequently irredeemable lind usually transferable in any amount.
‘I’ht: issue of debellture stock in the ca~e of companies incorporated by Act of parliament is regulated either by their special Acts or by the Companies Clauses Act, 1863 (26& 27 Vict. c.118).
Hee IIlso the Companies Act, 1900
Debentures are sometimes payable to
bearer and sometimes to the registered
holder. And bv custom thev mav be treated
as negotiable instruments. When debentures
to bearer are offered as security, a mere
deposit of them may be taken (a form of
transfer not being necessary), or they may
be accompanied, as is preferable, by a
memorandum of deposit or an agreement
showing for what purpose they have been
left with the banker. In Bechuanaland
Exploration Co. v. London Trading Bank
(1898, 2 Q.B. 658), where bearer debentures
of an English company had been stolen
and pledged with the bank, it was held that
the bank was entitled to the debentures
because they were, by the general custom
of merchants, negotiable instruments and
transferable \<\ d.livcry.
he niL !:’!, -I debentures payable
to bearer – > ; ii n .1 again in the case
of EdHst.il. V. .b;;…’.;; i>- Co. (1902, 2 K.B.
145), when the decision in the Bechuanaland
case was followed. In the judgment of
Bigham, J. (afterwards Lord Mersey), it is
said : “It has been argued that the attri-
bute of negotiability could not be attached
to a contract except by the law merchant
and that these bonds are of such recent
creation that their negotiability under that
branch of the law cannot be justified. It is
no doubt true that negotiability can only
be attached to a contract by the law mer-
chant or by a statute ; and it is also true
that, in determining whether a usage has
become so well established as to be binding
in the courts of law, the length of time
during which the usage has existed is an
important circumstance to take into con-
sideration ; but it is to be remembered that
in these days usage is established much
more quickly than it was in days gone by ;
more depends on the number of the trans-
actions which help to create it than on the
time over which the transactions are spread ;
and it is probably no exaggeration to say
that nowadaj-s there are more business
transactions in an hour than there were in
a week a century ago. Therefore the com-
pai-atively recent origin of this class of
securities in my view creates no difficulty
DEB] DICTIONARY OF BANKING [DEB
in the way of holding that they are negoti-
able by virtue of the law merchant ; they
are dealt in as negotiable instruments in
every minute of a working day, and to the
extent of many thousands of pounds. It is
also to be remembered that the law merchant
is not fixed and stereotyped ; it has not
yet been arrested in its growth by being
moulded into a code ; it is, to use the words
of Cockburn, C. J., in Goodivin v. Robarts
(1875, L.R. 10 Ex. 337), capable of being
expanded and enlarged so as to meet the
wants and requirements of trade in the
varying circumstances of commerce, the
effect of which is that it approves and
adopts from time to time those usages of
merchants which are found necessary for
the convenience of trade ; our common
law, of which the law merchant is but a
branch, has in the hands of the judges the
same facility for adapting itself to the
changing needs of the general public ;
principles do not alter, but old rules of
applymg them change, and new rules spring
into existence. Thus it has been found
convenient to treat securities like those in
question in this action as negotiable, and
the courts of law, recognising the wisdom
of the usage, have incorporated it in what
is called the law merchant, and have made
it part of the common law of the country.
In my opinion the time has passed when
the negotiability oi ;> .inr lionds, whether
Government bonds ..r ti.i.li;i^ l).)nds, foreign
or English, can be ial!i..l in .[iicstion in our
Courts. The existence ol the usage has been
so often proved and its convenience is so
obvious, that it must be taken now to be
part of the law ; the very expression ‘ bearer
bond ‘ connotes the idea of negotiability, so
that the moment such bonds are issued to
the public they rank themselves among the
class of negotiable securities. It would be
a great misfortune if it were otherwise, for
it is well known that such bonds are treated
in all foreign markets as deliverable from
hand to hand ; the attribute not only en-
hances their value by making them easy of
transfer, but it qualifies them to serve as a
kind of international currency ; and it
would be very odd and a great injury to
our trade if these advantages were not
accorded to them in this country.”
^Vhere debentures or certificates of deben-
ture stock, payable to a registered holder,
are given as security, they should, to form
a complete security, be transferred into the
names of the bank’s nominees. When they
give a charge upon the company’s land the
transfer must be under seal. (See Transfer
OF Sh.^res.) The debentures or certificates
may also be lodged with a blank transfer
that is, a transfer in which the space for the
transferee’s name is left blank, or which is
undated. Notice of the charge should be
given to the company. When necessary,
the blank transfer is completed by the banker
and sent in to the office of the company for
registration. A blank transfer, however, is
not a satisfactory document. (See Bl.\nk
Transfer.) If the debentures are about
due for payment, they should be indorsed
by the registered owner and authority given
to the banker to write a receipt above the
signature.
Where debentures are deposited by a
company as security for a loan, and the
debentures are of a larger face value than
the amount of the loan, the holders are
entitled to dividends upon the full amount
of the debentures until the loan is repaid.
When a company, which is indebted to a
banker, issues debentures forming a specific
charge upon the property of the company,
without applying the money so raised in
reduction of the loan or overdraft, the banker
should review his position, because, in the
event of a winding up, he will, unless other-
wise secured, rank merely as an unsecured
creditor alter the debenture holders.
A private firm sometimes registers as a
limited company for the sole purpose of
obtaining powers to issue debentures as a
floating charge upon its stock, and of avoid-
ing the necessity of having to give a bill of
sale upon the stock in order to borrow
money thereon.
Every company shall, within two months
after allotment, and within two months after
registration of the transfer of any debentures
or debenture stock complete, and have ready
for dehvery, the debentures, and certificates
of debenture stock, unless the conditions of
issue otherwise provide. (See Section 92 of
the Companies (Consolidation) Act, 1908, under heading Certificate.)
Every mortgage or charge created after July 1, 1908, by a company, registered in England or Ireland, must be delivered to the registrar of companies for registration within twenty-one days after the date of its
creation. Tlie holding of debentures entitUng the holder to a charge on land shall not be deemed to be an interest in land.
WTiere a series of debentures containing, or giving by reference to any other instrument.
It is usual for a debenture to be secured
by a ” fixed ” charge upon the land of the
company and by a ” floating ” charge upon
its stock, book debts and uncalled capital.
By that means the company can continue
its business and use up and vary the assets
included under the floating charge. If the
company defaults in paymeit of the prin-
cipal and interest secured by the debentures,
or goes into liquidation, the floating charge
becomes fixed, and attaches the assets as
at that date. Although debentures ma}’ be
secured by a trust deed, a banker should
ascertain the nature of the property, as the
propert)’- may prove to be of little value.
Wliere a debenture (not being one of a
series) is give a by a company to secure its
account, the deeds of the property should
be deposited with the banker along with
the debenture, otherwise an equitable mort-
gagee, without notice of the debenture, might
obtain priority.
ACCOUNT, or ACCOMPT-coniinuetl.
Formerly an “action of account”
lay to obtain a statement, but now
recourse is usually had to the Chancery
Division where the account may be
obtained summarily under Ord. XV.
- Stated: An account no longer open
or current, but closed by the statement,
agreed to by both the parties, of a
balance due to the one or other of them.
Action will usually be brought thereon
in the King’s Bench Division and the
writ specially endorsed enabling the
plaintiff in case of defendant appearing
to take summary proceedings by
summons under Ord. XIV.
- Settled: Where discharged.
ACCOUNT DUTY. Similar to probate duty
but payable in respect of property
given during lifetime, e.g., dollatio
“,,,rtill call1la, or l!’ift illte1′ ‘1’iVtlll within
twelve months before death. Now
superseded by estate duty (q.v.).
ACCOUNTABLE RECEIPT. A written
acknuwledgment of the receipt of
money or goodlI to be accounted for by
the receiver.
ACCOUNTANT – GEORAL.
MASTER-GENERAL. ] [PAY-
ACCRETION. Generally synonymous with
aceruer. [ACCRUE.) But the word is
specially used to denote an accession to
an owner of land on the sea shore, or
fresh land recovered from the sea by
alluvion or dereliction. 1 Stepk. Cullt.
[ALLUVION; DERELICTION.]
ACCltOACK, or ACCROCD (Fr. accrocher,
to fix or hook), means attempting
to exercise royal power. 4 Stepk.
Com.
ACCRlJK. Lit. to grow to, as interest ac-
crues to principal. It also means to
arise, as when a cause of action is said
not to have accrued to the plaintiff
within six years, actio 7101& accrevit
inira IIU; a’nnOIl.
ACCUMULATION. When the interest of
a fund, instead of being paid over to
some person or persons, is itself invested
as often as it accrues, 80 as to be reserved
for the benefit of some person or persons
in the future, the income is said to be
accumulated. Restrictions are imposed
upon accumulation, partly by the rules
against perpetuities [l’ERPETUITY],
and partly by Thellusson Act (39 & 40
Goo. 8, c. ,98) and Accumulations Act,
- 1 Step/to Com.; 2 Step/t. amt.
[TUELLUSSON ACT.]
5 ACQ
ACCUJroLATIVE lUDGDNT OR SD-
TENCE. A sentence passed on a
person already under sentence for a
crime; the second sentence to com-
mence after the expiration of the first
and not to run concurrently.
ACltNOWLKDGMDT. 1. Of debt, if in
writing signed by debtor or his agent,
will prevent Statute~ of Limitation
from running: 9 Geo. 4, C. 14, s. 1, and
19 & 20 Vict. c. 97, s. 18.
- Of signature to a will by testator.
If the signature be not made in the
presence of two witnesses its subsequent
acknowledgment in their pr~nce will
eatisfy the Wills Act, 1887.
ACltNOWLEDGMDT 01′ DKKDS, BY
KAB.B.IKD WODN. ‘fhe method
provided by a&;4 Will. 4, C. 74, as
amended by the Can veyaneing Act, 1882,
for ascertaining a1l<1 verifying the con-
sent of a married womRn to a convey-
ance of her real property if it is not her
separate property: to give validity to
which instrumeut8, the wife must” be
examined separately and apart from
her husband by a judge or a com-
missioner appointed for the purpose,
touching her knowledge of the contents
of the deed. and her CODSCnt thereto,
and must declare the same to have been
freely and voluntarily executed by her,
a memorandum thereof being endorsed
on the deed. 1 Step/to Com.
ACDOWLKDG]I[ENT 01′ RIGlIT TO
PRODUCTION 01′ DEEDS, introduced
by Conveyancing Act, 1881,8.9. in place
of former covenants, where title deeds
related to properties held or conveyed
to different owners. If a vendor retains
any portion of the property to which
the deeds relate he is entitled to retain
the deeds, and will give to the pUl’chaser
an acknowledgment of right to pro-
duction and to copies, and an under-
taking for safe custody. If the whole
property is disposed of but to two or
more separate purchasers, the largest
purchaser ,will take the deeds and
give acknowledgment and undertaking.
1 Step”‘. CUIII-.
ACQUIESCENCE. Consent either express
01′ implied. A means by which a right
may be 1000t, though the party entitled
thereto might have a!l8erted it success-
fully hnd he prcsented his claim in due
time.
ACQUISITIVE PRESCRIPTION. Pre-
scription whereby a right is acquired,
otherwise called positive prescription.
[PRESCRIPTION.]
Digitized by Google
ACQ
ACQUITTAL (Fr. Acquitfe1′; Lat. Al’quie-
tare, to discharge, or keep in quiet). 1.
A deliverance, and setting free from
the suspicion or guilt of an offence.
Thus he that is discharged of a criminal
offence by judgment, on its merits, if
subsequently charged with the same,
or legally the same offence, he may
plead autre/(lisacq1tit, or, as more usual,
raise the defence under the general plea
of ” not guilty.” 4 Step/I. {:I/III.
- To be free from entries and molesta-
tions by a superior lord for services
issuing out of lands.
ACQUITTANCE. A discharge in writing
of a sum of money, or other duty which
ought to be paid or done. If under seal,
it is called a l·elease.
ACT IN PAIS (Fr. Pais, or Pay’, country).
An act done” in the country,” e.g., an
ordinary conveyance, as distinguished
from an act done in court, which is
a matter of record. 1 Step/I. (Inn.
[MATTER IN PAIS.]
ACT OF ATTAINDER. An Act of parlia.-
ment passed for attainting a person, or
rendering a person liable to the conse-
quences of attainder. [ATTAINDER.]
ACT OF BANKRUPTCY. All act or event
done or suffered by a person, which
would be available within three months
as the ground for a petition by a creditor
or creditors to the amount of 50l., for a
receiving order Rgainst the debtor’s
estate. Enumerated in Bankruptcy
Act, 1883 (46 & 47 Vict. c. 52), and
Bankruptcy Act, 1890 (53 & 1i4 Vict. c.
71). 2 Steplt.. O,m.; RobslI1l Bkcy.
[ADJUDICATION; BANKRUPT.]
ACT OF GOD. A phrase used to define
those occurrences which man has no
power to foresee or prevent: a destruc-
tive storm, for instance, or a sudden
and unforeseen death [c/o VIS MAJOR].
ACT OF GRACE. An Act of parliament
proceeding from the Crown in the first
instance instead of recciving royal
assent after passing through parlia-
ment, e.g.,an Act at the commencement
of a reign granting pardons. 2 Stepll.
001n. In !Scotland an Act so termed
was passed in 1696 for providing main-
tenance Cor debtors imprisoned by their
creditors.
ACT OF IlIDEJ[]IITY. A statute passed
for the protection of those who have
committed some illegal act, subjecting
them to penalties. An annual Indemnity
6 ACT
Act used to pass for the protection of
those who had acted in certain capacitie”
without the necessary qualification; 8S
justices, for instance, without taking t be
oaths. Indemnity Acts have also be(’11
passed after a suspension of the Ha.be.,s
Corpus Acts (57 Goo. 3, cc_ 3, 55; 58
Goo. 3, c. 6), and to protect a ministry
who have issued an order in council
not justifiable in law. 2 Step/I. (}unl_;
Dicey” Law 0/ tlte OoTUtitution.
ACT OF LAW. An event ha.ppening
otherwise than by act of party. /Speci-
ally title so acquired. Thus the eldest
son of an intestate succeeds to his
father’s real estate by act of law. Al..o
remedy given by law, viz., retainer by
executor, or remitter (q.t·.).
ACT OF PULlAXEO. A statute; a
law made by the legislature, the king,
lords, and commons in parliament
assembled.
Acts of parliament are of three kinds :
- “Public.”
- “Local or special.”
3… Private or personal.”
ACT OF SETTLEDlIT (12 & 13 Will. 3,
c. 2), by which the crown was settled
(on the death of Queen Anne) upon
lSophia, Electress of Hanover, and the
heirs of her body being Protestan ta_
2 Step/I. emn..
ACT OF SUPREllACY (1 Eliz. c. 1), by
which the supremacy of the Crown in
matters ecclesiastical was established_
2 Stepll. &m.
ACT OF UNIFOR][ITY (14 Chas. 2, c. 14)_
An Act regulating public worship. I’>ce
also 35 & 36 Vi ct. c. 37, and Public
Worship Regulation Act, 1874 (37 & a8
Vict. c. 1S5). 2 Step/t. COIIt.
ACTIO PERSONALIS KORITlJR CU.
PERSONA. [ACTIONS PERSONAL.]
ACTION (Lat. Actio). The lawful de-
mand of one’s right. It is delined by
Justinian, jlUJ p1’08equentli in jud icio
fJuotlllliclli tlebet1l1′; a right of prose-
cuting, in a judicial proceeding, that
which is due to anyone. Now gene-
rally used to denote the actual pur-
suit of this right, or the means of ita
exercise. In this view, i.e., with refe-
rence to the right enforced or redress
obtained, actions are divided into ciril
and penal, and also into real, pel·80nal.
aIUZllli;r.”tl. 3 Step!t. COlli. [ACTION8
CIVIL AND PENAL; ACTIONS MIXED;
ACTIONS REAL AND PEBSONAL.]
Digitized by Google
ACT
.ACTIOI 01′ THE WRIT. A phrase used
when the defendant pleaded some
matter by which he showed that the
plaintiff’ had no cause to have the
writ he brought, though it might well
be that he might have another writ
or action for the same matter. Now
obsolete.
ACTIOI OI THE CASE (Lat. Actio Iltper
camlll.). A remedy, given by statute
Westminster the Second, c. 24, for
wrongs and injuries committed without
immediate violence, and so called be-
cause commenced by newly-framed
writs in which the plaintiff’s whole
case or cause of complaint was set forth
at length. 3 Step!l. Com. [CA.BE.]
ACTIOnS Io.nU.T.E (named actions).
Forms of action previous to the
statute 13 Edw.l (West. 2nd), c. 24,
prescribed for redressing those wrongs
which most usually occurred, as opposed
to actions on the case. [ACl’lON ON
THE CASE.]
ACTIOIS DCJ:STRAL, POSSJ:SSORY
DD DROITURAL, were actions for
the recovery of land, distinguished
with reference to the title relied upon
by the plaintiff or demandant; as in an
action anceltral, the seisin or possession
of his ancestor; in a pOll8llory action,
his own possession or seisin.
An action possessory is sometimes
distinguished from an action droitural,
inasmuch as (in theory, at least) the
object of the former is to ascertain the
right of possession; and that of the
latter the right of property. 3 Step!l.
Com.. [ACTIONS REAL AND PER-
SONAL.]
ACTIOIS CIVIL AD pJ:In. A cil’il
action is brought to enforce a civil
right merely, as if a man seek to re-
cover a sum of money formerly lent, etc.
A penal action aims at some penalty or
punishment in the party sued, be it
corporal or pecuniary i specially an
action brought for recovery of the
penalties given by statute. [QUI TAM
ACTION.] Ori.’lRittal actions, usually
styled prosecutions, are of a public
nature, in the name of the king, against
one or more individuals accused of a
crime. [ACTION.]
ACTIOIS .!XED partook of the nature
both of real and personal actions, for
therein real propert.y was demanded
and also personal damages for a wroug
sustained. These suits are all abolished.
7 ACT
Arrears of rent may be recovered by
the landlord by ordinary action, ill
which the pOBSession of the property
may also be recovered. 3 StepA. Com.
[ACTIONS REAL AND PERSONAL.]
ACTIOIS PERSO• .A.L. 1. An action for
a purely personal right (as for a bodily
injury, or injury to the reputation),
which must be brought, if at all, by
the party injured, and is not transmis-
sible to his representatives, according
to the maxim, Actio pe/,Ionalil morifllr
CUll’ }J8/,1I0nii, .. a personal action dies
with the person.” But this maxim
must not be understood to apply in
cases of breach of contract causing
damage to a man’s estate through the
medium of a persoqal injury, as by
incapacitating him trom work, or de-
priving his family of his support. And
see exceptions by 4 Edw. 3, c. 1; 3 &: 4
Will. 4, c. 42 ; and 9 &: 10 Vict. c. 4:1.
3 Steph. Com. [LoRD CAMPBELL’S or
FATAL ACCIDENTS ACT.J
- As opposed to real action. [PERSONAL
RIGHTS.] See also ACTIONS REAL AND
PERSONAL.
ACTIOIS POPlrLAB.. [QUI TAM Ac-
TIONS.]
ACTIOn un DD PER.OIn.
- Real actions were the old feu lal
actions brought for the recovery of
land or any freehold interest therein.
3 Step!l. COllt.: Wilts. R. P. InJ/’o-
dUt-tio”. By 3 & 4 Will. 4, c. 21, s. a6,
all the real and mixed actions then in
existence were abolished, with four
exceptions therein specified. And, of
these fonr, one (the action of “eject-
ment “) was entirely remodelled by the
Common Law Procedure Act of 18.-.2,
and by the Judicature Act and rules
thereunder, is superseded by an onli-
nary action for recovery of land; and
the three ot.hers (writ of dower, writ of
right of dower, and quare impedit), by
the Common Law Procedure Act of
1860, are assimilated in their procedure
to personal actions.
- Actio/til pe/’sonal, as opposed to actions
real, are such whereby a man claims
a debt, or personal duty, or damages
in lieu thereof; and likewise whereby
a man claims a satisfaction or damages
for some injury done to his person
or property. The former are said to
be founded on contracts, or to arise
eill ,’ontractlt ‘/’el ql~alli eill contractu,-
the latter upon torts or wrongs, or to
Digitized by Google
ACT
ACTIon U.A.L.AlID PDS01UL-ctmtd.
arise e.» delicto ‘l:el q?uz,i eil1 delicto. Of
the former nature are all actions for
debts, and claims of that nature, non-
delivery of goods, and non-performance
of agreements; of the latter, all actions
for trespasses, assaults, defamatory
words, and the like. 3 Stepl’. COII/.
- ACTIVE TRUST. A tmst requiring
active duties on the part of the trustee.
The Statute of Uses does not apply to
these. 1 Stepk. Com. [TRUST; BARE
‘fRUSTEE.]
ACTOR. The proctor or advocate in civil
courts or causes. Actor is also a plain-
tiff, as contrasted with rl”UI, a defen-
dant. Cowel ;.3 Steplt. Com.
ACTS OF COURT. Legal memoranda in
the nature of pleadings used in the
Admiralty Courts. BOlt’!:iel’.
ACTS OF SEDERUlI~ are ordinances of
the Court of Session in Scotland, cor-
responding to General Rules and Orders
in England and Ireland.
ACTS OF UlIIOll. With Wales, 27 Hen. 8,
c. 26, Rnel 3-1 & 85 Hen. 8, c. II; with
Scotland, 5 Anne, c. 8, and 6 Anne,
cc. 6 and 23; with Ireland, 39 & 40
Geo. 3, c. 61.
ACTUARY (Lat. Actuari?tJ/). 1. A clerk
or scribe that registers the canons and
constitutions of the convocation.
Now usually a person who calcnlates
the risks and premiums for fire, life,
and other insurances.
ACTUS DEI DlIIImI 1I0CET (or tacit
·injuria”,). The act of God does injury
to no one. [ACT OF GOD.]
ACTUS 11011 FACIT REUJ[ lIISIOn
SI~:B.:B..A.. An act does not make a
man guilty unless there be guilty in-
tention. As a general rule of our law
a guilty mind is an essential ingredient
of crime, and this ought to be borne in
mind in construing all penal statutes.
Broom’, Lsgal .iUail1il/llI.
AD mn. Tallying in the essential point.
Must be romeTllf/U ad ide/It in contract.
AD llrRA REGIS. A writ that lay for
one holding a crown living agaJnst him
that sought to eject him, to the preju-
dice of the king’s title in right or his
crown.
8 ADV
AD LITEJ[ (for the suit). A guardian
appointed by the court to defend a suit
on behalf of an infant is called a guar-
dian ad litem. 2 Sll’pll. C011l. [GUAR-
DIAN; INFANT.]
AD LOllGAllil. At length.
AD OSTIVJ[ ECCLESU!: (at the door of
the church). One of the five species
of dower formerly recognised. After
Edward IV. it fell into total disuse,
and was abolished by 3 & 4 Will. 4,
c. 105, s. 13. 1 Stepk. Colli.
AD QUOD DA.][lIUJ[. 1. A writ which,
at common law, ought to be sued out
before the Crown grants certain liber-
ties, as a fair, market, or such like,
which may be prejudicial.to others.
- A writ to be sued out whenever it
was proposed to alter the course of a
common highway, for the pllrpo8e of
inquiring whether the change might in
any way be. prej udicial to the public.
3 Slepll. C011l.
- A similar writ was given by stat.
27 Edw. I, st. 2, preliminary to a
licence being granted by the Crown to
alienate in mortmain. 1 Stepll. Com.
But all of th”m are now obsolete.
AD SECTA.][ (at the suit of). Used,
generally, in its abbreviated forms ada.
and at,., in the designation of the title
of an action when the defendant’s
name is placed first. Thus, the suit
Brown v. SlIIitk may also be described
Smith au. Brown.
AD TERlIIImUJ[ QUI PlI.&TDIT. A
Wl’it of entry which formerly lay for
the lessor or his heirs after the term
granted had expired, and the landa
were withheld. Other remedies are
now provided by 4, Geo. 2, c. 28, and
11 Geo. 2, c. 19 ; and the writ itself is
abolished by 3 & 4 Will. 4, c. 27, s. 36.
[DOUBLE RENT; DOUBLE VALUE.]
AD VALOREJ[ (according to the value).
A duty, the amount of which dependa
upon the value of the property taxed,
is called an adl”al(l1’e1n duty.
AD VElIT:B.BJ[ IlISPICmOUJ[, or de
i’elltl’e iltspil·ielldo. 1. A writ formerly
issued where a widow was suspected to
feign hel’self with child. in order to
produce a supposititious heir to an
estate, to examine whether she were
with child or not. Now obsolete. 2
Stepl,. COlli
BOTTOMRY BOND.
A document by which the master or captain of a ship charges or hypothecates the ship as security for the repayment of a loan. The circumstances under which such an instrument could be created are where the ship is in a foreign port and certain repairs are absolutely necessary in order to enable the ship to continue its voyage, and the captain has no other means of raising the money required to effect the repairs, and is unable to communicate with the owners. The money borrowed upon a bottomry bond is repayable onl}- in the event of the ship reaching its 7—(1535) destination. A lender must exercise the
greatest care, as a captain has no authority to bind the ship-owner, except in case of necessity. (See Respondentia.)
Acceptance Register.
Acceptance Ledger.
Acceptors’ Ledger.
Accounts Opened and
Closed Book.
Advice Book.
Attendance Book.
Balance Book.
Bank Note Register.
Bank Rate Book.
Bankers’ Ledger.
Bearer Bonds Register.
Bill Diary.
Bill Ledger.
Bill Register.
Bills Discounted Book.
Bills for Collection Book.
Bills Remitted Book.
Branches Ledger.
Cash Balance Book.
Cash Book.
Check Ledger.
Cheque Book Register.
Circular Notes Book.
Clearing Book.
Coin Balance Book.
Common Seal Book.
Counter Cash Book.
Coupon Book.
Current Account Ledger.
Current Account Regis-
ter.
Day Book.
Deposit Ledger.
Deposit Register.
Diaries.
Discount Cash Book.
Discount Day Book.
Discount Ledger.
Discount Register.
Dividend Register.
Draft Book.
E.Kchange Book.
General Ledger.
Investment Ledger.
Key Register.
Letter Books.
Letters Despatched
Register.
Letters of Credit.
Letters Received Regis-
ter.
Loans Ledger.
Loans Register.
London Agent’s Ledger.
Minute Book.
Money Book,
Monev Lent and Lodged
Book.
Note Register (for own
issue).
Opinion Book.
Overdue Bills Book.
Pass Book Register.
Postage Book.
Probate Register.
Record of Cheques
Book.
Remittance Book.
Returned Bills.
Safe Custody Register.
Securities Book.
Securities Journal.
Securities Ledger.
Shareholders’ Ledger.
Shareholders’ Register.
Short Bills Ledger.
Signature Book.
Staff Register.
Stock Exchange
T actions.
Teller’s Cash Book.
Till Book.
Title Deeds Boo
Transfer Register
BOROUGH ENGLISH. A peculiar cus-
tom in connection with real propertv in cer-
tain old cities and boroughs, by which the
property descends to the youngest son
instead of to the eldest.
BORROWED NOTE. A name some-
times given to the agreement which is
signed by a borrower when bearer bonds
or registered securities are given by him
the banker authority to sell the securities in
the event of the loan not being repaid at the
specified time, or of the stipulated margin
on the securities not being maintained.
BORROWING ON CONSOLS. This refers
to a method adopted by the Bank of Eng-
land for malving an increase in its ” Bank
Rate ” effective in preventing an undue
rain of gold from its reserve. A large con-
same book appears under diffeient names) stituent of the item “Other Deposits
he Bank Return is formed by the balances
of the other London banks. In ordinary
times, therefore, when the amount of ” Other
Deposits ” is high, it implies that the money
market (the London banks and bill brokers)
has a considerable sum of floating money
at its disposal, which, seeking for any
profitable investment rather than lying idle
in the hands of the Bank, competes for the
bills that are offered for discount and so
prevents the market rate of discount from
closely following the Bank Rate. But the
only certain way to counteract the outflow
of gold from the country is to increase the
value of money at home, which proceeding
acts in two ways ; it renders the export of
gold unprofitable, because it is so dear to
buy, and it turns the foreign exchanges in
favour of this country by encouraging
bankers abroad to purchase London paper
for the sake of the high rate of discount
which they can get. The Bank of England,
therefore, in order to get rid of this floating
capital, which interferes with the effect of
the Bank Rate, employ the somewhat drastic
expedient of borrowing it themselves by
selling consols for ” money ” and buying
them back for the ” account.” The pur-
chasers, whoever they may be, draw cheques
on their accounts, soon absorbing the float-
ing fund referred to and having the imme-
diate effect of lessening the bankers’ bal-
ances contained in the ” Other Deposits.”
Deprived of this means of competition
with the Bank of England, the monej- market
has no alternative but speedily to raise its
rate, and the desired result is obtained.
(See Bank Rate, Bank Return.)
BORROWING POWERS.
When a company wishes to borrow, a banker should, by careful reference to the memorandum
and articles of association of the company, ascertain what powers to borrow, if any, are given therein, and what are the limitations of those powers. If a company has power to borrow, there may be a limit beyond
which the directors cannot go. and a banker must make certain that any proposed advance will not, with any loans already obtained by the company, exceed the specified limit. It may be that the directors are
unable to borrow except by resolution of the company, or they may be able to borrow but not have any power to mortgage the company’s property. Directors must not act ultra vires —-that is, beyond their powers. In dealing with a company it is of the first importance to see, as Lord Halsbury said
(in County of Gloucester Bank v. Rudry Mcrthvr Steam and House Coal Colliery Co.,
IS95, 1 Ch. 629), ” that the acts which the company is purporting to do are acts within
the general authority of the company, and if those public documents, which every one
has a right to refer to, disclose an infirmity in their action, they take the consequences
of dealing vnth. a joint stock company which
has apparently exceeded its authority.”
WTiere nothing is said in the memorandum
and articles as to borrov\ing, a right to
borrow is presumed in the case of a trading
company for the purposes of its ordinary
business. The above remarks apply whether
the company desires to borrow by way of
overdraft (either unsecured or secured by a
mortgage of its property), or by debentures,
or by discounting bills. (Sec Comp.\nies,
Company Limited by Shares.)
APPLICATION FOR SHARES. A form of application for shares usually accompanies a prospectus offering to the public for subscription or purchase shares in a company. When the form is filled up b^- an applicant, I it is despatched, along with the sum payable on application, to the company or the company’s bankers. If the application is successful, a letter of allotment (see Allotment) is sent to the applicant in due course.
The following is a specimen of an application form : —
The British Baking Company, Limited.
Capital £ Divided into shares of /I each. Form of A Implication for Shares. Payable on application; on allotment ; one month after allotment; and the balance as and when required, in calls of not more than
per share, and at intervals of not less than months.
To the Directors of
The British Baking Company, Limited. Gentlemen, —Having paid to j-our bankers
the sum of £ , being a deposit of per share paj^able on application for
shares in the above Company, I hereby re- quest you to allot me that number of shares,
and I agree to accept such shares, or any less number that may be allotted to me, upon
the terms of the Company’s Prospectus filed with the Registrar of Joint Stock Companies,
and of the Memorandum and Articles of Association of the Company, and I authoiise
you to place my name upon the Register of Shareholders in respect of any shares so
allotted to me.
Name (in full) Address Occupation or Description Ordinary Signature Date
Attached to the application form is usually
APP] DICTIONARY OF BANKING
a form of receipt to be filled up by the banker when the money is paid : — Receipt for Payment on Application. Received the day of 19 of on account of the British Baking Company, Limited, the sum of £ being per share, payable on application, for shares of i\ each in the above-named Company. For X and Y Bank, Ltd. N.B.^This half, when receipted, must be preserved by the shareholder, to be exchanged
in due course for the share certificate.
APPLICATION FORMS. A general term signifying any form which is filled up and signed by a customer when making an application to a banker, e.g., an application form for a deposit receipt or for a banker’s draft, i
APPLICATION PAYMENTS. Payments made by bankers, upon application, to whole- sale houses in London, on behalf of country ! customers. i The practice is as follows : A country ‘ customer (generally a retail draper) hands to his banker a list of the payments which | he wishes to be made to wholesale houses ! in London ; the banker forwards to his I London office, or London Agents, forms of cheques filled up with the various amounts, and drawn upon the London bank, to be sent to the wholesale creditor, or handed to him when applied for. Each cheque requires to be signed by the respective creditor as the drawer.
These cheques must, like ordinan,’ cheques, bear a penny stamp, and the Inland Revenue Authorities
demand that the list supplied to the country banker must bear a penny stamp for each name on the hst. Each separate payment, therefore, costs twopence for stamp duty.
APPOINTMENT. By the Stamp Act, 1891, the duty is :— I s. d.
Appointment of a new trustee, and Appointment in execution of a power of any property, or of any use, share, or interest in any property, by any instrument not being a will .’10 And see Section 62, under heading Conveyance.
ARBITRATION OF EXCHANGE. The
operation by which a merchant pays a debt
in one country by means of a bill payable in
another. The price of bills payable in
different centres is taken into account, and
if it is found that it is cheaper to settle a debt
in, say, Paris, by means of a bill upon, say,
Amsterdam or JBerlin. than by a bill upon
Paris, the merchant takes advantage of that
fact and makes payment accordingly.
Simple arbitration is where only one
intermediate place is included in the trans-
action ; where there are several places it is
called compound arbitration.
ARRANGEMENT WITH CREDITORS.
Where a person is unable to pay his debts he
may (apart altogether from the Bankruptcy
Acts) endeavour to make an arrangement
with his creditors with respect to the money
he owes to them. A debtor usually offers—
(1) To pay the creditors so much in the
pound in full satisfaction of his debts to them
(see CoMPosiTiox with Creditors) ; or
(2) To transfer his property to a trustee
to be realised and the proceeds divided
amongst the creditors. (See Assignment
FOR Benefit op Creditors.)
If such an arrangement is made by deed
or agreement, the deed of arrangement must
be registered within seven days. (See Deed
OF Arr.^ngement.)
In the case of a proposed arrangement
between a company and its creditors, the
Companies (Consolidation) Act, 1908,
Section 120, enacts :
” (1) Where a compromise or arrangement
is proposed between a company and
its creditors or any class of them,
or between the company and its
members or any class of them, the
court may, on the appHcation in a
summary way of the company or of
any creditor or member of the com-
pany or, in the case of a company
being wound up, of the liquidator,
order a meeting of the creditors or
class of creditors, or of the members
of the company or class of members,
as the case may be, to be summoned
in such manner as the court directs.
” (2) If a majority in number representing
three-fourths in value of the cre-
ditors or class of creditors, or mem-
bers or class of members, as the case
may be, present either in person or
by proxy at the meeting, agree to
any compromise or arrangement, the
compromise or arrangement shall,
if sanctioned by the court, be binding
on all the creditors or the class of
creditors, or on the members or class
of members, as the case may be, and
also on the company or, in tlie case
of a company in the course of being
wound up, on the liquidator and
contributories of the company.
” (3) In this Section the expression com-
pany ‘ means any company liable
to be wound up under this Act.”
ARRESTMENT. In Scotland, a legal
process by which a banker is ordered not to
part with funds belonging to a certain cus-
tomer who is a debtor to the person on whose
behalf the arrestment has taken place. The
equivalent in England is attachment {q.v.).
ARTICLES OF ASSOCIATION. The
articles of association are the regulations
or bye-laws of a joint stock company by
which its affairs are governed.
Subject to the provisions of the memo-
randum of association, a company can alter
or add to the articles. (See Section 13,
below.)
The memorandum forms the boundary to
the directors’ powers, but within that boun-
dary the company can make its own rules
and regulations, and these are contained in
the articles of association.
Before dealing with a company a banker
should be careful to make himself acquainted
with the memorandum and articles of
association of the company, and particularly
as to the powers of the directors to borrow
and to mortgage the company’s property.
Every person dealing with a company is
deemed to have notice of the contents of the
memorandum and articles.
APPRAISER. A person who appraises or
values property. The licence of an ap-
praiser costs £1 per annum. (See Appraise-
ment.)
APPRENTICE. In some banks all junior
clerks, on entering the bank’s service, are
apprenticed either for a certain number of
years or until they reach the age of twenty- 1
one. An indenture of apprenticeship (stamp
2s. M.) is entered into, and the father or
guardian is usually a party thereto. The
apprentice agrees to serve faithfully, pre-
serve secrets, and conduct himself in a proper
manner ; the father agrees to provide the |
apprentice with proper clothing, etc. ; and j
the bank agrees to instruct the youth in the
business of a banker.
APPROPRIATED STAMPS. Section 10
of the Stamp Act, 1891, enacts ;
” (1) A stamp which by any word or
words on the face of it is appropri-
ated to any particular description of
instrument is not to be used, or, if !
used, is not to be available, for an [
instrument of any other description.
‘ (2) An instrument falling under the par-
ticular description to which any
stamp is so appropriated as afore-
said is not to be deemed duly
stamped, unless it is stamped with
the stamp so appropriated.”
Appropriated stamps are used for ;
Bankruptcy, proof of debt. The stamp
is adhesive.
Brokers’ contract notes. The stamp is
adhesive.
Foreign bills—that is. bills and promissory
notes drawn or made out of the United
Kingdom except such as are paj’able on
demand, at sight or on presentation, for
which a postage stamp is used ; or at not
exceeding three days after date or sight, for
which a postage or appropriated stamp may
be used. See under Bill of Exchange.
Foreign bill stamps are adhesive.
Inland bills and promissory notes drawn
or made in the United Kingdom (except such
as are payable on demand, at sight, or on
presentation, or at not exceeding three
days after date or si.ght. when a penny post-
age or ini]inNSL’il stamp mav be used), and
the aiiiuiiiui.iUd stamps must be impressed.
APPROPRIATION OF PAYMENTS. If a
customer pays in mone}’ for a particular
purpose, the banker must apply it accord-
ingly. For example, if an amount is paid
in to meet a specified cheque or bill, it must
be used for that purpose, but if the amount
is paid in without any particular instructions
being given, the banker may appropriate the
monev in reduction of the customer’s
indebtedness. According to the rule in
Clayton’s case, an amount paid to credit is
held to be a payment of the earliest unpaid
debit in the account, and it is the sum first
paid in that is first drawn out, (See
Clayton’s Case.)
APPROVED ACCEPTANCE. A seller
may agree to take an ” approved accept-
ance ” from a purchaser—that is. the accept-
ance must be one to which no reasonable
objection can be raised.
APPURTENANCES. Things or rights
which appertain or belong to a property and
which pass along with the property.
ARBITRAGE. The purchase of securities
on one stock exchange, or centre, and the
immediate sale of the same securities on
another stock exchange, or centre, where a
higher price is ruling, in order to obtain the
benefit of the difference in prices between the
two markets. Arbitrage transactions take
place in stocks and shares, in bills, and also
in bullion.
ARBITRATION. A matter which is in
dispute is often settled by means of arbitra-
tion—-that is, the case is referred by the dis-
puting parties to one or more persons, the
arbitrators, who act as arbiters or judges,
and upon whose decision the disputants agree
to abide. The decision of an arbitrator is
called the award. (See Award.)
By Section 119 of the Companies (Con-
solidation) Act, 1908 :—
” (1) A company may by writing under its
common seal agree to refer and may
refer to arbitration, in accordance
32
ARB] DICTIONARY OF BANKING [ART
with the Railway Companies Arbitra-
tion Act, 1859, any existing or future
difference between itself and any
other company or person.
” (2) Companies parties to the arbitration
may delegate to the arbitrator power
to settle any terms or to determine
any matter capable of being lawfully
settled or determined by the com-
panies themselves, or’ by their
directors or other managing body.
(3) All the provisions of the Railway
Companies Arbitration Act, 1859,
shall apply to arbitrations between
companies and persons in pursuance
of this Act ; and in the construction
of those provisions ‘ the com-
panies ‘
shall include companies
under this Act.” (See Comp.^nies.)
The following are the provisions contained |
in the Companies (Consolidation) Act, |
1908 :—
Registration of Articles.
‘ 10. (I) There may, in the case of a
company limited by shares, and
there shall in the case of a company
limited by guarantee or unlimited,
be registered with the memorandum
articles of association signed by the
subscribers to the memorandum and
prescribing regulations for the com-
pany.
” (2) Articles of association may adopt all
or any of the regulations contained
in Table A. in the First Schedule to
this Act.
‘
‘ (3) In the case of an unlimited company
or a company limited by guarantee
the articles, if the company has a
share capital, must state the amount
of share capital with which the
company proposes to be registered.
‘
(4) In the case of an unlimited company
or a company limited by guarantee,
if the company has not a share
capital, the articles must state the
number of members with whicli the
company proposes to be registered,
for the purpose of enabling the
registrar to determine the fees
payable on registration.
Application of Table A.
“11. In the case of a company limited by
shares and registered after the commence-
ment of this Act, if articles are not registered,
or, if articles are registered, in so far as the
articles do not exclude or modify the regula-
tions in Table A. in the First Schedule to this
Act, those regulations shall, so far as appli-
cable, be the regulations of the company in
the same manner and to the same extent as
if they were contained in duh’ registered
articles.
Form, Stamp, and Signature of Articles.
“12. Articles must
[a) be printed ;
(6) be divided into paragraphs num-
bered consecutively ;
(c) bear the same stamp as if they were
contained in a deed ; and
[d) be signed by each subscriber of the
memorandum of association in the
presence of at least one witness who
must attest the signature, and that
attestation shall be sufficient in
Scotland as well as in England and
Ireland.
Alteration of Articles by Special Resolution
“13. (1) Subject to the provisions of this
Act and to the conditions contained
in its memorandum, a company mav
by special resolution alter or add
to its articles ; and any alteration
or addition so made shall be as valid
as if originally contained in the
articles, and be subject in like
manner to alteration by special
resolution.
(2) The power of altering articles under
this section shall, in the case of an
imlimited company formed and
registered under the Joint Stock
Companies Acts, extend to altering
any regulations relating to the
amount of capital or its distribution
into shares, notwithstanding that
those regulations are contained in
the memorandum.”
Table A., referred to in the above sections,
contains regulations which ma}^ be adopted
for a company’s articles of association, but
in man}’ companies special articles are pre-
pared. The regulations in Table A. relate
to : —business, shares, lien, calls on shares,
transfer and transmission of shares, for-
feiture of shares, conversion of shares into
stock, share warrants, alteration of capital,
general meetings, proceedings at general
meeting, votes of members, directors,
powers and duties of directors, the seal,
disqualifications of directors, rotation of
directors, proceedings of directors, divi-
dends and reserve, accounts, audit, notices.
The following sections set forth the
general provisions of the Act with respect
to the memorandum and articles :
Effect of Memorandum and Articles.
” 14. (1) The memorandum and articles
shall, when registered, bind the
company and the members thereof
to the same extent as if they re-
spectively had been signed and
sealed by each member, and con-
tained covenants on the part of each
member, his heirs, executors, and
administrators, to observe all the
provisions of the memorandum and
of the articles, subject to the
provisions of this Act.
” (2) .\\ money payable by any member
to the company under the memo-
randum or articles shall be a debt
ART] DICTIONARY OF BANKING |ASS
due from him to the company, and
in England and Ireland be of the
nature of a specialty debt.
Registration of Memorandum and Articles.
“15. The memorandum and the articles (if
any) shall be delivered to the registrar of
companies for that part of the United King-
dom in which the registered office of the com-
pany is stated by the memorandum to be
situate, and he shall retain and register them.
Effect of Registration.
“16. (1) On the registration of the
memorandum of a company, the
registrar shall certify under his
hand that the company is incor-
porated, and in the case of a limited
company that the company is
limited.
” (2) From the date of incorporation men-
tioned in the certificate of incor-
poration, the subscribers of the
memorandum together with such
other persons as may from time to
time become members of the com-
pany, shall be a body corporate by
the name contained in the memoran-
dum, capable forthwith of exercising
all the functions of an incorporated
company, and having perpetual
succession and a common seal, with
power to hold lands, but with such
liability on the part of the members
to contribute to the assets of the
company in the event of its being
wound up as is mentioned in this
Act.
Conclusiveness of Certificate of Incorporation.
“17. (1) A certificate of incorporation
given by the registrar in respect of
any association shall be conclusive
evidence that all the requirements of
this Act in respect of registration
and of matters precedent and inci-
dental thereto have been complied
with, and that the association is a
company authorised to be registered
and duly registered under this Act.
” 2) A statutory declaration by a solicitor
of the High Court, and in Scotland
by an enrolled law agent, engaged
in the formation of the company, or
by a person named in the articles as
a director or secretary of the com-
pany, of compliance with all or any
of the said requirements shall be
produced to the registrar, and the
registrar may accept such a declara-
tion as sufficient evidence o-f
compliance.
Copies of Memorandum and Articles to be
given to Members.
“18. (1) Every company shall send to
every member, at his request, and
on payment of one shilling or such
less sum as the company may
prescribe, a copy of the memoran-
dum and of the articles (if any).
” (2) If a company makes default in com-
plying with the requirements of this
Section, it shall be liable for each
offence to a fine not exceeding one
pound.” (See Comp.\nies, Memor-
andum OF Association, T.\ble A.)
” AS PER ADVICE.” These words, when
found upon a bill of exchange, imply that
the drawer has drawn the bill in accordance
with a letter of advice.
ASSETS. The goods, property, and re-
sources of all kinds, of a company or an
individual, which are available for the
payment of the debts or habilities. A
banker’s assets are his cash in hand or
with his London agents or at the Bank of
England, money at call and short notice,
investments in Government and other
securities, bills, advances to customers,
premises, etc. (See Balance Sheet.)
ASSIGNMENT. To assign a right or a
property is to transfer it, or make it over, to
another person.
As to the stamp duty on an assignment
by way of security, see Mortgage ; and
upon a sale or otherwise, see Conveyance.
As to an assignment of a life policy, see
Life Policy.
ASSIGNMENT FOR BENEFIT OF
CREDITORS. A person who is unable to
pay his debts may legally call his creditors
together and offer to transfer his property to
a trustee, in order that it may be realised
and the proceeds apportioned amongst the
creditors, according to the amount of their
claims, in full discharge of what he is owing
to them.
The deed assigning the property to the
trustee must be registered within seven days,
otherwise it is void. (See Deed of Arrange-
ment.) Such a deed is binding onh’ upon
the creditors who assent to it.
An assignment of the debtor’s property
for the benefit of his creditors, is an arrange-
ment quite apart from proceedings under
the Bankruptcy Acts.
No further cheques must be paid upon
the account of a customer who has made an
assignment.
Where a debtor assigns his property to a
trustee for the benefit of his creditors it is
an act of bankruptcy (see Acts of Bank-
ruptcy), and a debtor may be adjudged a
bankrupt upon a bankruptcy petition pre-
sented within three months from the date
of an act of bankruptcy (see Receiving
Order). When such a petition is presented
and the debtor is made bankrupt, the deed
of assignment becomes void. The trustee
is therefore hable at any time within three
months from the date of the deed of assign-
ment, to be called upon, in the event of the
debtor’s bankruptcy, to hand over to the
official receiver or trustee in bankruptcy, all
funds and property of the debtor which have
come into his possession since the date of
the deed of assignment. Any balance in the
hands of a banker should, therefore, not be
paid to the trustee of a deed of assignment
until the expiration of three months from
the date thereof. (See B.\nkruptcy. Com-
position WITH Creditors.)
ASSIGNMENT OF DEBTS. (See Debts,
Assignment of.)
ASSIGNMENT OF LIFE POLICY. (See
Life Policy.)
ASSOCIATION OF ENGLISH COUNTRY
BANKERS. Every country bank in Eng-
land and Wales is entitled to membership,
and to one vote through its representative ‘
at any general meeting of the Association.
The annual subscription is :
£2 for each bank having nOt more than
fifteen branches.
;^5 for each bank having more than
fifteen but not more than fifty branches.
;£10 10s. for each bank having more than i
fifty branches.
The affairs of the Association are managed
by a president, vice-presidents, a general
committee of not more than twenty-four
members, and an executive council.
The Association appoints a secretary
qualified to watch over, and report to the
executive council on, all matters arising in
Parliament or elsewhere affecting directly or
indirectly the interests of the English
country banks, or any section thereof.
If any questions arise affecting the special
interests of issuing banks, or of non-issuing
banks, or of private banks, or of joint stock [
banks, the members of the general committee
representing such banks respectivelv are
entitled to meet separately to discuss and to
take action upon such questions, and have
power to co-opt for such purpose representa-
tives of any other banks having the same
interests.
The annual general meeting of the
AssoLi.itKin l^ li Id in the month of May.
ASSOCIATIONS. (See Societies.) “
ASSUMED NAME. Where a person trades
in an assumed name, and signs cheques and
bills in that name, it is customary for a
banker to receive a written authority from
him to honour cheques or bills when signed
in the trade name. The authority is signed
by the person in his real name and a specimen
signature of the assumed name is given.
The Bills of Exchange Act, 1882, permits
a bill to be signed in an assumed name. Bv
Section 23 :—
” (1) Where a person signs a bill in a
trade or assumed name, he is liable
thereon as if he had signed it in his
own name.”
A purchaser of a business often assumes,
for a time at any rate, the name of the person
who built up the connection.
ASSURANCE. Originally the word
” assurance ” appears to have been applied
only to life assurance, and the word “in-
surance ” to fire insurance, but either word
is now commonly used without regard to its
original meaning. (See Fidelity Gu.\r-
antee. Fire Insurance, Life Policy-,
Marine Insurance Policy, Policy of
Insurance, Sinking Fund Assurance,
Specie—Transmission of.)
ATTACHMENT. Where a person has
obtained a judgment for the recovery of
money, he may, by application to the Court,
obtain a garnishee order which, when served
upon a banker, will attach anv monev in the
banker’s hands belonging to the person
against whom judgment was given. (See
Garnishee Order.)
ATTENDANCE BOOK. Most banks re-
quire every clerk to sign the attendance book
on arrival at the office each morning, and to
do so before a certain specified time, after
which a line is usually ruled across the page,
and all late arrivals must of necessitv sign
below it.
It is the duty of the chief clerk, or some
other responsible official, to see that the book
is duly signed day by day. In the case of
absence on leave, or on annual holiday, or
on account of illness, a note is made in the
book to that effect.
The clerk who is always punctual is, as a
rule, the one who may be depended upon to
be up to time in the discharge of any duty
ATT] DICTIONARY OF BANKING [ATT
which may be given to him to fulfil. Half
an hour in the morning is more valuable
than an hour at night, and he who turns up
readily in the morning, because he wants to
get on with his work, is worth more than the
man who drags himself in at the last moment,
merely because he knows he cannot with
impunity delav his arrival anv longer.
ATTESTATION. A formal” witnessing of
a signature.
In the case of a will, the testator’s signa-
ture must be made, or acknowledged, by the
testator in the presence of two or more
witnesses present at the same time, each of
whom must attest or “witness” the will.
There is no special form of attestation
necessary, but the following is a common
attestation clause : —’
‘ Signed by the said_ , the testator,
in the presence of us, both present at the
same time, who in his presence and at his
request and in the presence of each other
have hereunto set our names as witnesses.
The witnesses give their names, addresses
and descriptions. A legacy to a witness or
to the wife of a witness is void.
Where a signature is witnessed, as in the
case of a transfer of shares, the form is
usually : —
” Signed, sealed, and delivered by the
above named in the presence of
” Signature
‘
‘ A ddress
“Occupation
When a transfer is executed out of Great
Britain the signature should be attested by
H.M. Consul or Vice-Consul, a clergyman,
magistrate, notary public, or other person
holding a public appointment. When a
witness is a female, she must state whether
she is a spinster, wife or widow ; and if a wife
she must give her husband’s name, address
and occupation.
Where any material alterations or inter-
lineations have been made in a deed, they
should be referred to in the attestation clause
as having been made before execution of the
document.
In a document under hand, a witness often
signs simply as :
—” Witness, John Brown,”
and gives his address and description.
In Scotland, as for example where a cus-
tomer signs a banker’s printed memorandum
of deposit, a clause, called the ” testing
clause,” in the following form is included
before he signs :
” In witness whereof these presents in so
far as not printed written by [name of person
who filled up the form] and subscribed by me
the said at upon the
day of one thousand nine hundred
and before these witnesses of
[description] and of
[description].
‘• Witness.
Witness.”
The testing clause in a Scotch deed also
states the number of pages on which it is
written, and mentions any important altera-
tions which have been made in the document.
Where a signature by ” mark ” is wit-
nessed, the form is :
his
John X Brown,
mark
U\t)U’ss,
John Jones,
Wanvick Road,
Carlisle, Builder.
In banks it is customary for two persons
to witness a ” mark.”
In the case of a deed which is executed by
a ” mark,” the words used are to the follow-
ing effect :
” Signed, sealed, and dehvered by the
above-named John Brown, he having signed
by a mark in consequence of being unable to
sign his name, in the presence of us, the deed
having first been read over and explained
to him when he appeared perfectly to
understand the same.”
In Scotland, when a person is unable to
write, a deed must be executed for him by
a notary public or a justice of the peace
in the presence of two witnesses, as a deed
cannot be executed by a mark.
ATTESTED COPY. A copy which is
certified by a witness to be an exact copy of
the original document. (See Certified
Copy.)
The following is a specimen of the form of
attestation at the foot of a copy of a docu-
ment of several pages :
” We have carefully examined this and the
two foregoing sheets with the original
document and attest it to be a true copy
thereof. Dated this day of
19 . : .
I Clerks with Brown & Jones,
[ Solicitors, Carlisle.”
For Stamp duty, see Copy.
BAL] DICTIONARY OF BAXKIXG [BAL
position. The position should not be repre-
sented as being better than it actually is.
but the position may be better than is
disclosed in the statement. Lord Justice
Buckley has said :
” The purpose of the
balance sheet is primarily to show that the
financial position of the company is at least
as good as there stated, not to show that it
is not and may not be better.”
The balance sheet of a company must be
signed on behalf of the board by two
directors, or, if there is only one. by that i
director, and the auditors’ report must be
attached to the balance sheet or there must
be a reference to it at the foot of the balance
sheet, and the report must be read before the
company in general meeting and shall be
open to inspection by any shareholder.
(See Section 113 of the Companies (Con-
solidation) Act, 1908. under Auditors.)
‘
Section 26. s.s. 3 of that Act requires that
the annual summary to be filed with the
registrar of companies must (except where
the company is a private company) include
a statement, in the form of a balance sheet,
audited by the company’s auditors, contain-
ing a summary of its share capital, its
liabilities, and its assets, and giving such
particulars as will disclose the general nature
of those liabilities and assets, and how the
values of the fixed assets have been arrived
at, but the balance sheet need not include
a statement of profit and loss. (See
Register of Members of Comp.^ny.)
The articles of association of a company
usually contain regulations regarding the
balance sheet, but in companies which are
governed by Table A. (see Section 1 1 under
Articles of Association) the following regu-
lations apply :
” 106. Once at least in every year the
directors shall la^^ before the company in
general meeting a profit and loss account
for the period since the preceding account
or (in the case of the first account) since the
incorporation of the company, made up to
a date not more than six months before such
meeting.
•
107. A balance sheet shall be made out
in every year and laid before the company in
general meeting made up to a date not more
than six months l:)cfore such meeting. The
balance sheet shall be accompanied by a
report of the directors as to the state of ‘the
company’s affairs, and the amount which
they recommend to be paid by way of
dividend, and the amount, if any, which
they propose to carry to a reserve fund.
” 108. A copy of the balance sheet and
report shall, seven days previously to the
meeting, be sent to the persons entitled to
receive notices of general meetings in the
manner in which notices are to be given
hereunder.”
Holders of preference shares and deben-
tures have the same right to receive and
inspect the balance sheets of the company
as is possessed by the holders of the ordinary
shares. (See Section 114 of the above-
mentioned Act, under Ai’ditors.)
In the case of a banking company regis-
tered after August 15, 1879, the balance sheet
must be signed by the secretary or manager,
and where there are more than three directors
of the company by at least three of those
directors, and where there are not more than
three directors by all the directors (Section
113, s.s. 5).
Every limited banking company must, on
the first Monday in February and the first
Tuesday in August in every year, make a
statement of its capital, liabilities and assets
in a prescribed form, and display a copy in its
registered office and in every branch or
place of business (Section 108). (See
B.’^NKiNG Company.)
The auditors’ certificate and report on a
bank’s balance sheet is usually in a form
similar to the following : —
” We beg to report to the shareholders
that we have examined the books and
accounts of the X. & Y. Banking Company,
Limited, at December 31, 19… along with
the securities representing the investments
of the bank or held against loans, the bills
discounted, and the cash balances at the
head office and at several of the branch
offices. We have obtained all the informa-
tion and explanations which we have
required, and, in our opinion, the foregoing
balance sheet is properly drawn up so as to
exhibit a true and correct view of the state
of the bank’s affairs, according to the best
of our information and the explanations
given to us, and as shown by the books of the
company.”
In considering a customer’s balance sheet,
a banker should scrutinise each individual
item, and not be satisfied merely by ascer-
taining the difference between the total of
the assets and the total of the liabilities.
As to the liabilities, it may be taken for
granted that the customer will have to meet
all he has shown to the full extent, but there
may be items on that side of the sheet which
have been omitted or forgotten, and thereBAL] DICTIONARY OF BANKING I
BAL
may be also contingent liabilities, as. for
example, in respect of any guarantees he may
have given, which will not appear on his
balance sheet. Such contingent liabiUtics
should be revealed to the banker, as it is
necessary that they be taken into account
in obtaining a correct estimate of a person’s
position. If bills have been discounted for
the customer, his liability for any which
may be dishonoured should not be over-
looked. The natural tendency is to minimise
liabilities and to swell assets.
In considering the assets, the item ” book
debts ” calls for inquiry. Is the money
owing by reliable parties ? Are the debtors
few and the individual amounts large, or is
the total spread over a large number of
persons ? If any portion is bad or doubtful
the banker will not regard it as an asset.
Has any provision been made for bad and
doubtful debts ? As to the value of the
” stock,” as shown in the balance sheet,
it should be ascertained if it is taken at
cost price or at the present market price.
The nature of the stock must not be for-
gotten, because certain articles do not
improve by keeping, or they may go out of
fashion and have practically no value. A
farm stock should be put down in a balance
sheet at what it will sell at present, not at
what the farmer anticipates it will produce
two or three months ahead. It does not
necessarily follow that all the sheep on a
farm belong to the farmer who owns or
rents the farm, nor that the stock in a shop
always belongs to the shopkeeper. It is
necessary to bear in mind that the value
of the stock of a going concern is, as a rule,
very different from that which prevails
when the business comes to an end and the
stock is sold by auction.
If the customer owns property it is desir-
able to ascertain the nature of the property
and also whether the value in the balance
sheet is a fair one. If there are any mort-
gages upon the property the amounts must, of
course, be deducted, but as margins frequent-
ly disappear when the property is realised
to repay the mortgagee, it is not wise, as a
rule, to rely upon an asset of that description.
If the value of any shares is included,
the present price should be ascertained, and
a note made of any liability on the shares.
If the statement shows the existence of
private loans, particulars should be furnished
of the security which is held.
Each balance sheet must be separately
studied in connection with the peculiarities
of each trade, but, as a rule, the amount of
book debts and stock as shown in a balance
sheet requires a considerable allowance to be
made in order to arrive at what may be
regarded as the approximate sum which
would be obtained if the debts were suddenly
called in or the stock realised under the
hammer. After allowing a liberal margin
for that object, the banker should notice if
the customer is in such a sound position that
all his current habilities could be cleared
off, without requiring any amount which may
be entered as the value of the premises in
which his business is conducted. Machinery
and similar assets should be regularly written
down to provide for depreciation.
If the assets include an amount for good-
will, the banker will exclude it in making his
estimate.
It should be ascertained whether or not
interest upon capital has been deducted
before arriving at the profits for the year.
A banker may have, in many cases, to help
a customer in making out a balance sheet,
and much may be done to assist in obtaining
a statement from which nothing material
has been omitted, and in which none of the
assets are overstated. Such a balance sheet
should be signed by the customer. Balance
sheets should be preserved so that a new one
may be compared with the previous ones.
The most satisfactory form of private
balance sheet is one that is certified by an
auditor or accountant.
A readiness on the part of a customer to
supply particulars of his position begets con-
fidence in a banker’s mind. George Rae in
” The Country Banker ” says : ” The solid
man of business who, from pride or pre-
judice, hesitates to disclose the position of
his business affairs to the confidential ears of
his bankers, damnifies himself in two ways ;
on the one hand, he lessens the full measure
of credit which he might obtain from them
should he ever desire to borrow ; on the
other, he fails to furnish them with data
whereon to speak of his position, with
knowledge and decision, in reply to inquiries
from without.”
With respect to the balance sheet of a bank
the usual items on the liabilities side are ; —
Paid-up capital.
Reserve fund.
Deposits, current accounts, \
etc. Liabilities
Acceptances, indorsements. – to the
etc. 1 public.
Notes in circulation .’
43BAL] DICTIONARY OF BANKING [BAN
On the assets side the items are : —
Cash in hand and at Bank of England.
Money at call and short notice.
Investments.
Bills discounted.
Current accounts and loans.
Acceptances and indorsements (as per
contra)
Bank premises.
A banker endeavours to keep the assets
in such a form that he may be able to provide
for all demands which may be made upon
him. One banker may consider it necessary,
from the fluctuating nature of his deposits,
to preserve a larger stock of cash in hand
and money at call than another whose
deposits are more stable. Money at call
and short notice is called a banker’s second
line of defence. (See Gold Reserves.)
BALANCE TICKET. Where a certain
number of shares has been sold and the
certificate, which is sent by the seller’s broker
to the company’s office for certification, is
for a larger number than has been sold, a
balance ticket is given to the broker for the
remaining shares. When the new certificate
for the unsold shares is ready, it can be
obtained on delivery of the balance ticket.
(See Certified Transfer.)
BANCO. A term applied to the standard
monej’ in which a bank, in some countries,
kept its accounts, in order to distinguish it
from the worn or depreciated currency of
the country. Prior to 1873, the word “was
used in connection with the bank accounts
at Hamburg.
BANIS. (See Foreign Moneys—Rou-
1VL\NIA.)
BANK. The word ” bank ” is said to be
derived from the Italian word banco, a
bench. The early bankers, the Jews in
Lombardy, transacted their business at
benches in the market-place. When a
banker failed his banco was broken up by
the people, whence our word bankrupt.
One of the earliest Italian banks, the Bank
of Venice, was originated for the manage-
ment of a pubhc loan, or monte, as it was
called. Macleod. in his ” Elsmcnts of Bank-
ing,” says: —”At thni ii>-riod ilv Germans
were masters of a gn 1
1 ivni ^ii ll.ily; and
the German word b.n:: . mi i.. he used as
well as its Italian e<jui\.iii m .; j;/, , and was
Italianised into banco, and the loans were
called indifferentl}^ monti or banchi.”
The principal business of a banker is to
receive money from customers either on
current account or on deposit account, and
in the former case to pay cheques drawn by
the customers. A Ijanker also discounts
bills and promissory notes, and makes
advances either by way of a loan or of an
overdraft. He undertakes the agency of
other British banks and of foreign banks,
effects purchases and sales of securities,
issues circular notes and letters of credit,
accepts bills for customers, undertakes the
office of executor and trustee, and takes
charge of securities and other valuables for
customers. A banker often acts as treasurer
for a local authority, and sometimes manages
the issue of a loan for a foreign Government
or for a corporation.
With reference to the use of the word
” bank ” Mr. Justice Eve has expressed an
opinion in the recent case of Saunders v.
Carbonneau (1910, unreported) that the
“time has arrived when the legislature
might well impose some restriction on the
indiscriminate use of the term ‘bank’ by indi-
viduals and corporations whose business has
no relation to banking, properly so-called.”
The word ” bank ” is sometimes used in
the singular and sometimes in the plural.
It is customary to say, e.g., ” the bank has
a note issue,” ” the bank allows 2 per cent,
interest,” ” the bank have considered your
application.” ” the bank are willing to grant
the loan.” (See Bank of Deposit, Bank
OF England, Bank of Issue, Banking
Company, Chartered Bank, Private
Bank.)
BANK BILL. A I>ill which is issued or
accepted by a bank. The discount rates
for bank bills are less than the rates for
fine trade bills ; for example, when the rates
for three months’ bank bills are quoted at
2-1’^ to 2|. per cent., trade bills may be quoted
at, say, 21 to 2|-.
BANK” BUILDINGS. (See Bank
Premises.)
BANK CHARTER ACT, 1844 (7 & 8
Vict. c. 32). An Act to regulate the
issue of bank notes and for giving to the
Governor and Company of the Bank of
England certain privileges for a limited
period. The Act was passed on July 19,
1844, and still regulates the note issues in
England. The main provisions of the Act
are : —The Bank of England was to be
divided into two departments, the issue
department and the banking department.
The directors were to transfer to the issue
department securities to the e.xtcnt of
;^14,000,0()0, of which the debt due by the
public was to be a part, ami also so muchBAN] DICTIONARY OF BANKING (BAN
of the gold coin, gold and silver bullion as
should not be required for the banking
department, in exchange for bank notes.
After the passing of the Act there were to
be no new banks of issue in any part of the
United Kingdom, and, if a banker ceased to
issue his own notes, the Bank of England
was empowered to increase its note issue
against public securities b\- two-thirds of the
amount of such issue withdrawn from
circulation. A bank issuing notes on May
6, 1844, was allowed to continue to issue to
an average amount as ascertained by the
average amount of the bank’s notes in cir-
culation for twelve weeks preceding April 27.
Issuing banks were to render accounts to
the commissioners of Inland Revenue.
Previous to the passing of this .Act bankers
issued notes without restrictions, and it was
anticipated that the restrictions imposed
by the Act would have a beneficial effect in
preventing the evils from which the country
had suffered through an unrestricted issue.
The working of the Act was soon tested.
In 1847 a severe crisis occurred, but the
Act did not fulfil what had been expected,
and in order to save the situation the Govern-
ment had to intervene and authorise the
Bank to issue notes in excess of the amount
as fixed by the Act. This is called the
” Suspension of the Bank Act,” and it was
successful in restoring confidence. In
November, 1857, another crisis occurred, and
again the Government gave permission to the
Bank to exceed its authorised issue, with
the same result as on the previous occasion.
In May, 1866, the Act was suspended for the
third time, and, as before, the trouble soon
passed away. In each case the ” restric-
tive theory,” as contained in the Act. entirely
failed, and the free issue of notes, the ” ex-
pansive theorj-,” saved the country. H. D.
Macleod says the expansive theory “was
the only means of saving the Bank itself as
well as every other bank from stopping
payment. Thus we see the entire failure
of Peel’s expectations (that is, the restrictive
theory in the Bank Charter Act). He took
awa}’ the power of unlimited issues from
the Bank, and imposed a rigorous numerical
limit on its powers of issue, under the hope
that he had prevented the recurrence of
panics. But the panics recurred with pre-
cisely the same regularity as before ; and
therefore, in this sense, the Act has failed ;
and when monetary crises do occur, it is
decisively proved that it is wholly incom-
petent to deal with them.”
The Act regulating the issue of notes in
Ireland is 8 & 9 Vict. c. 37, and the corre-
sponding Act for Scotland is 8 & 9 Vict,
c. 38. (See B.\nk Notes, Bank of
Engl.\xd, B.\nk of Issue.)
BANK HOLIDAYS. The Act (34 Vict,
c. 17) making provision for bank holidays,
and respecting obligations to make payments
and do other acts on such bank holidays, was
passed on May 25, 1871. The Act is as
follows :
Whereas it is expedient to make provision
for rendering the day after Christmas Day,
and also certain other days, bank holidays,
and for enabling bank holidays to be
appointed by royal proclamation :
” Be it enacted by the Queen’s most excel-
lent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament
assembled, and by the authority of the same,
as follows :
Bills due on Bank Holidays to be Payable on
the Following Day.
‘ Section 1 . After the passing of this Act
the several days in the Schedule to this Act
mentioned (and which days are in this
Act hereinafter referred to as bank holidays)
shall be kept as close holidays in all banks in
England and Ireland and Scotland respec-
tively, and all bills of exchange and pro-
missory notes which are due and payable on
any such bank holiday shall be payable, and
in case of non-payment may be noted and
protested, on the next following day, and
not on such bank holiday ; and any such
noting or protest shall be as valid as if made
on the day on which the bill or note was
made due and payable ; and for all the pur-
poses of this Act the day ne.xt following a
bank holiday shall mean the next following
day on which a bill of exchange may be
lawfully noted or protested.
Provision as to Notice of Dishonour and
Presentation for Honour.
” 2. When the day on which any notice of
dishonour of an unpaid bill of exchange or
promissory note should be given, or when
the day on which a bill of exchange or pro-
missory note should be presented or received
for acceptance, or accepted or forwarded to
any referee or referees, is a bank holiday,
such notice of dishonour shall be given and
such bill of exchange or promissory note
shall be presented or forwarded on the day
next following such bank holiday.BAN] DICTIONARY OF BANKING [BAN
As to any Payments on Bank Holidays.
” 3. No person shall be compellable to
make any payment or to do any act upon
such bank holidays which he would not be
compellable to do or make on Christmas Day
or Good Friday ; and the obligation to make
such payment and do such act shall apply
to the day following such bank holiday ; and
the making of such payment and doing such
act on such following day shall be equivalent
to payment of the money or performance
of the act on the holiday.
Appointment of Special Bank Holidays by
Royal Proclamation.
•’A. It shall be lawful for Her Majesty,
from time to time, as to Her Majesty may
seem fit, by proclamation in the manner in
which solemn fasts or days of public thanks-
giving may be appointed, to appoint a
special day to be observed as a bank holiday,
either throughout the United Kingdom or
in any part thereof, or in any county, city,
borough, or district therein, and any day so
appointed shall be kept as a close holiday in
all banks within the locality mentioned in
such proclamation, and shall, as regards bills
of exchange and promissory notes payable
in such locality, be deemed to be a bank
holiday for all purposes of this Act.
Day Appointed for Bank Holiday may be
altered by Order in Council.
” 5. It shall be lawful for Her Majesty in
like manner, from time to time, when it is
made to appear to Her Majesty’ in Council
in any special case that in any year it is
inexpedient that a day by this Act appointed
for a bank holiday sliall be a bank holiday,
to declare that such day shall not in such
year be a bank holiday, and to appoint such
other day as to Her Majesty in council may
seem fit to be a bank holiday instead of such
day, and thereupon the day so appointed
shall in such year be substituted for the
day so appointed by this Act.
Exercise of Powers conferred by Sections A and j
5 in Ireland by Lord-Lieutenant.
“6. The powers conferred by Sections 3
and 4 of this Act of Her Majesty may be
exercised in Ireland, so far as relates to that
part of the United Kingdom, by the Lord-
Lieutenant of Ireland in Council.
Short Title.
7. This Act may be cited for all pur-
poses as ‘
The Bank Holidavs Act, 1871.’
Schedule.
Bank Holidays in England and Ireland.
” Easter Monday.
The Monday in Whitsun week.
The first Monday in August.
The 26th day of December, if a week day.”
(If the 26th December is a Sunday, Monday,
27th December, shall be a bank holiday. See
Section 2 of the Act of 1875 given below.)
Bank Holidays in Scotland.
New Year’s Day.
Christmas Day.
If either of the above days falls on a
Sunday the next following Monday shall be
a bank holiday.
Good Friday.
The first Monday of May.
The first Monday of August.”
Bv 3 Edw. 7 c. 1, Bank Holiday (Ireland)
Act, 1903, St. Patrick’s Day, March 17,
when a week day shall be a bank holidav,
but if March 1 7 is a Sunday, March 1 8 shall
be a bank holiday.
Christmas Day and Good Friday, which
are common law holidays in England and
Ireland, are statutorv holidavs in Scotland.
The effect of bank ln.li.l.ix^ in connection
with Davs of Grace is dr.ilt nmiU in Section
14 of the Bills of KxLh.mgc Act, 1882 (see
D.\YS OF Gr.\ce), and in connection with the
reckoning of time under that Act it is dealt
with in Section 92 (see Bills of Exch.\xge
Act, 1882).
Holidays Extension .Act, 1875 (38 Vict,
c. 13).
” Whereas it is expedient to amend ‘
The
Bank Holidays Act. 1871 ‘
(in this Act
referred to as the Holidays Act of 1871), and
to extend certain of the holidays named
therein to the customs, bonding warehouses,
and docks, and to amend the Acts relating
to holidays in the inland revenue offices in
England and Ireland :
” Be it therefore enacted, etc.
Days mentioned in Schedule to be Holidays.
” Section 1 . From and after the passing of
this Act, the several days and each and
every of them in the Schedule to this Act
mentioned, being holidays under the Holi-
days Act of 1871, shall be kept as public
holidays in the customs, inland revenue
offices, and bonding warehouses in England
and Ireland respectively ; and it shall be
lawful for the directors or governing body
(by whatever name known) of any dock orBAN] DICTIONARY OF BANKING IBAN
docks in England and Ireland respectively I
to cause the said days or any of them to be
kept as holidays in such dock or docks, any !
restraining clause in any Act of Parliament
notwithstanding : Provided that such
directors or governing body shall give notice
thereof by inserting an advertisement to
that effect in some newspaper circulating in
the locality of such dock or docks, and by
affixing to the principal gates of the said dock
or docks, or to some conspicuous place in the
immediate neighbourhood, a notice to the
same effect for at least a week immediately
preceding any day which it is intended to
observe as a holiday under this Act ; and
the anniversary of the coronation of Her
Majesty and her successors, and the birthday
of the Prince of Wales, shall no longer be
kept as holidays in any inland revenue office
in England or Ireland. |
December 26 falling on Sunday.
• 2. Whenever the 26th day of December
shall fall on a Sunday, the Monday immedi-
ately next following, that is to say, the 27th
day of December, shall be a holiday under this
Act, and also under the Holidays Act of 1871
Exercise of Powers by Lord-Lieutenant of
Ireland.
‘ 3. The powers conferred on Her Majesty
by Sections 4 and 5 of the Holidays Act of
1871 may be exercised in Ireland, as far as
relates to that part of the United Kingdom,
by the Lord-Lieutenant in Council, and
Section 6 of that Act is hereby repealed ;
and those powers of Her Majesty and of the
Lord-Lieutenant in Council shall extend to
holidays under this Act.
Short Title.
” 4. This Act mav be cited for all purposes
as ‘
The Holidays Extension Act, 1875.’
Schedule.
” Easter Monday.
Monday in Whitsun week.
The first Monday in Aug:ust.
The 26th of December (if a week day).”
(See Time of Payment of Bill.)
BANK HOLIDAYS ACT, 1 87 1 . (See B.\nk
Holidays.)
BANK HOURS. The hours during which
banks are open to do business with the public
do not vary very much. The bankers in any
one town generally agree to act together as
to the hours when the doors will be opened
and closed. From 9 or 10 a.m. till 3 or 4
p.m. are the hours which are usually con-
sidered sufficient, though in some market
towns the banks continue open for an extra
hour upon market days. In very small
towns or in villages, the hours may be much
shorter, and are regulated according to the
amount of business to be done. Sub-
branches are, in some cases, open only for
two or three hours once a week, or as may
be found necessary.
On the occasion of local holidays, bankers
may agree to be open for only, say, an hour,
or they ma}’ agree to close altogether, and
in such cases due notice of the holiday must
be exhibited in the bank for some time pre-
viously. When a banker closes upon a local
hoHday he must arrange for bills falling due
to be attended to and also see if there is
anything urgent in the remittances and
correspondence.
Most banks have one half-day holiday in
the week and close at either 12 or 1 o’clock.
(See After Hours.)
BANK NOTE REGISTER. A book in
which some bankers keep particulars of every
Bank of England note which they receive,
and of every one which is paid away. The
name of the person from whom the note is
received is recorded, and also the number,
date, place of issue, and amount. Each entry
is numbered consecutively and the number
is placed upon the corresponding note,
so that by merely quoting that number, the
note may at any time be turned up in the
register and full particulars found. This
running number is useful as a ready ineans
of keeping a record of notes paid out across
the counter and sent away by post. The date
when a note is paid away may be marked
against the entry made when it was received.
or a separate book may be used for the
purpose in which only the reference numbers
need be copied, together with a note of the
person to whom it was paid and the date.
BANK NOTES. Banknotesarepromissory
notes, issued b}^ a bank and payable to bearer
on demand, but unlike promissory notes they
mav be re-issued after payment. They are
practically money and in the ordinary
course of business are treated as cash.
The definition of a bank note by 17 & 18
Vict. c. 83. Section 1 1 . is :
—” Ah bills, drafts.
or notes, other than notes of the Bank of
England, which shall be issued by any
banker, or the agent of any banker, for the
payment of money to the bearer on demand ;
and all bills, drafts, or notes so issued which
shall entitle or be intended to entitle the
bearer or holder thereof, without indorse-
I ment. or without anv further or other
47BAN] DICTIONARY OF BANKING [BAN
indorsement than ma}’ be thereon at the time
of the issuing thereof, to the payment of any
sum of money on demand, whether the same
shall be so expressed or not, in whatever
form and by whomsoever such bills, drafts.
or notes shall be drawn or made, shall be
deemed to be bank notes of the banker by
whom or by whose agent the same shall be
issued within the meaning of the 7 & 8 Vict,
c. 32, and 8 & 9 Vict. cc. 37 & 38.”
Notes may not be issued in England for a
less sum than five pounds, but in Scotland
and Ireland they may be issued for one
pound and upwards. Notes for less than £5
were prohibited in England after April 5,
1829 (7 Geo. IV c. 6. Section 3).
The Chinese are said to have been the
inventors of bank notes about the year 119
B.C.
The origin of bank notes in England is to
be found in the receipts which goldsmiths
gave for money left with them for safe
keeping. At first they were special promises
with regard to some particular money in
their possession, but, afterwards, they
became general promises to deliver a sum
of monej’ on demand.
Bank notes have relieved bankers and the
public generally from many inconvenient
transfers of large quantities of coins, which
would otherwise have been necessary. Pro-
fessor Jevons says : ” I find that a Bank
of England note weighs about 20J- grains,
whereas a single sovereign weighs about 123
grains, and the note may represent five,
ten, fifty, a thousand or ten thousand
such sovereigns with slight differences in
printing.”
A country bank which is authorised to
issue its own notes, must take out a licence for
each place where its notes are issued. (See
Licence.) A country banker usually issues
his own notes again and again until they
become so soiled as to be unfit for further
circulation, when he withdraws the worn
ones and issues others in their place.
The duty upon bank notes, as imposed by
the Stamp Act, 1891, is :—
Bank Note—
For money not exceeding £1 .
Exceeding £1 and not exceeding /2
£2 „ /5
/5 „ ;flO
£10 .. ;£20
£20 „ /30
£30 ., ^50
£^0 ,, ;^100
s. d.
5
10
1 3
1 9
2
3
5
8 6
j
And see Sections 29, 30 and 31 as follows :—
29. For the purposes of this Act the
I expression ‘ banker ‘
means any person
carrying on the business of banking in the
United Kingdom, and the expression ‘ Bank
note ‘ includes—
{a) Any bill of exchange or promis-
sory note issued by any
I
banker, other than the Bank
of England, for the payment
I of money not exceeding one
hundred pounds to the
bearer on demand ; and
(6) Any bill of exchange or pro-
missory note so issued which
entitles or is intended to
entitle the bearer or holder
thereof, without indorse-
ment or without any further
or other indorsement than
may be thereon at the time
of the issuing thereof, to
the payment of money not
exceeding one hundred
pounds on demand, whether
the same be so expressed or
not and in whatever form,
and by whomsoever the
bill or note is drawn or made.
” 30. A bank note issued duly stamped, or
issued unstamjied by a banker dulv licensed
or otherwise ,i iit hurised to issue unstamped
bank mitis, in,i\- be from time to time re-
issued without liiiiig liable to any stamp duty
by reason of the re-issuing.
“31. (1) If any banker, not being duly
licensed or otherwise authorised to
issue unstamped bank notes, issues,
or permits to be issued, any bank
note not being duly stamped, he shall
incur a fine of fift^’ pounds.
” (2) If any person receives or takes
in payment or as a security any bank
note issued unstamped contrary to
law, knowing the same to have been
so issued, he shall incur a fine of
twenty pounds.”
By 9 Geo. IV c. 23, Section 7, bankers
who are licensed to issue unstamped notes
or bills shall pay :
” As a composition for the duties which
would otherwise have been paj’able for such
promissory notes and bills of exchange
issued or in circulation during such half-
year, the sum of 3i. 6d. for every ;/;iOO, and
also for the fractional part of ;^100, of the
said average amount or value of such notes
and bills in circulation.” (Sec B.vnk
48BAN] DICTIONARY OF BANKING [BAN
Charter Act, Bank of England Notes,
Bank of Issue, Composition, Country
Bank Notes, Forgery, Half Notes.
Indorsement on Bank Note, Legal
Tender, Licence, Note Register, Note
Return, Payment Stopped (Notes), Post,
Statute of Limitations, Stolen Bank
Notes.)
BANK OF CIRCULATION. The same as
Bank of Issue {q.v.).
BANK OF DEPOSIT. A term applied to
banks which receive deposits from their
customers, but are not empowered to issue
their own notes, to distinguish them from
“banks of issue ” which are authorised to
issue their own notes
they may be ” bought in ” by an official of
the Stock Exchange. In the case of regis-
tered securities if not deUvered within ten
days they may be bought in against the
seller on the eleventh day after the Ticket-
day, or on any subsequent day, and the loss
occasioned by such buying-in must be borne
by the seller. (See Selling Out, Stock
Exchange.)
CALENDAR. From the following tables
the day of the week for any date from 1900
till 1950 can easily be ascertained. The one
table contains ordinary years, the other
table leap years.
If, for instance, it is required to know what
day of the week March 13, 1900, was. find [
^’
the year 1900 in the year column, then look |
Sat
to the left to find the month of March, and
at the bottom of the column containing that
month will be found the day of the week,
Tuesday, in a line with the 13th on the
right.
•BUILDING LEASE. The following ex-
hibits the general form of a building lease :^
This Indenture made the day of ;
1910 Between hereinafter
called the said lessor of the first part
and hereinafter called the
lessee of the second part Witnessetb
that in consideration of the rent here-
inafter reserved and of the covenants
and agreements hereinafter contained
and by or on the part of the lessee to
be paid and performed He the said
lessor, etc.
Doth by this deed appoint and demise
unto the lessee
All that piece or parcel of ground, etc.
Together with easements and appur-
tenances to the said piece of ground
belonging.
To have and to hold the said piece of
ground unto the lessee from the 1st day
of March, 1910, for the term of 99 years.
Yielding and paying therefor yearly and ;
every year during the term hereby
limited the yearly rent of
pounds free from all taxes, save only
the landlord’s income tax.
And the lessee covenants
That the lessee will duly pay the said
yearly rent, and all taxes.
And also that the lessee will within
months from the date hereof erect
dwelling houses upon the said ground
to the reasonable satisfaction of the
said lessor.
And also keep in good and substantial
order and repair the said dweUing
houses,
And in such good and substantial order
and repair will on the expiration of the
determination of the term hereby
limited peaceably yield and dehver the
same premises to the lessor.
And the lessee will insure the said dwelling
houses,
Provided always and it is hereby agreed
and declared that in case the said yearly
rent of or any half-yearly pay-
ment shall be in arrear for the space of
days, or in case the lessee or his
sub-lessees shall not faithfully keep all
the agreements and covenants in these
presents contained, it shall be lawful
for the lessor to re-enter upon the said
ground and dwelling houses and the
lessee and sub-lessees to expel and
remove.
And the lessor covenants with the lessee
that the lessee paying the yearly rent
and observing the covenants and agree-
ments shall peaceably hold and enjoy
the said premises during the time
hereby limited.
A building lease is usually granted for
99 years. In cases where the period is 999
years, it is practically equal to a freehold.
(See Le.\sehold.|
BUILDING SOCIETY. AU societies
formed under the Building Societies Acts,
1874 to 1894, must obtain a certificate of
incorporation from the Registrar of Friendly
Societies.
These incorporated societies are to be dis-
tinguished from an unincorporated society
formed under the Act of 1836, and which
has not since obtained a certificate of in-
corporation under the 1874 to 1894 Acts.
A terminating society means a society
which by its rules is to terminate at a fixed
date, or when a result specified in its rules
is attained ; a permanent society means a
society which has not by its rules any such
fixed date or specified result at which it
shall terminate.
With respect to incorporated societies, the
Building Societies Act, 1874 (37 ^ 38 Vict,
c. 42) provides as follows :
“Section 15. With respect to the
BUI] DICTIONARY OF BANKING [BUI
borrowing of monej^ bj’ societies under this
Act, the following provisions shall have effect:
” (1) Any society under this Act may
receive deposits or loans, at interest,
within the limits in this Section pro-
vided, from the members or other
persons, or from corporate bodies,
joint stock companies, or from any
terminating building society, to be
applied to the purposes of the
society :
“(2) In a permanent society the total
amount so received on deposit or
loan and not repaid by the society
shall not at any time exceed two-
thirds of the amount for the time
being secured to the society by
mortgages from its members.
‘ (3) In a terminating society the total
amount so received and not repaid
may either be a sum not exceeding
such two-thirds as aforesaid, or a
sum not exceeding twelve months’
subscriptions on the shares for the
time being in force :
” (4) Any deposits with or loans to a
society under this Act, made before
the commencement of this Act in
accordance with its certified rules,
are hereby declared to be valid and
binding on the society, but no
further deposits or loans shall be
received by such society, except
within the limits provided by this
section : I
” (5) Every deposit book or acknowledg-
ment or security of any kind given
for a deposit or loan by a society
shall have printed or written therein
or thereon the whole of the four-
teenth and fifteenth Sections of the !
present Act.”
An overdraft to a building society is a ,
loan within the meaning of the above Section, i
” Section 14. The liability of any member
of any society under this Act in respect of [
any share upon which no advance has been
made shall be limited to the amount actually
paid or in arrear on such share, and in
respect of any share upon which an advance
has been made shall be limited to the amount
payable thereon under any mortgage or
other security or under the rules of the
society.”
Part of Section 43 is as follows : —
If any society under this Act receives
loans or deposits in excess of the limits
prescribed by this Act, the directors or
committee of management of such society
receiving such loans or deposits on its behalf
I
shall be personally liable for the amount so
I received in excess.”
I
In Chapleo and Wife v. Brunswick Per-
manent Building Society and Others (1881,
6 Q.B.D. 696), Bagallay, L. J., in the course
I
of his judgment, said :
—” Persons who deal
with corporations and societies that owe
their constitution to or have their powers
j defined or limited by Acts of Parliament, or
are regulated by deeds of settlement or
rules, deriving their effect more or less from
Acts of Parliament, are bound to know or
to ascertain for themselves the nature of
the constitution, and the extent of the
powers of the corporation or society \-ith
which they deal. The plaintiffs and every
one else who have dealings with a building
society arc bound to know that such a
society has no power of borrowing, except
such as is conferred upon it by its rules, and
if in dealing with such a society they neglect
or fail to ascertain whether it has the power
of borrowing, or whether any limited power
it may have has been exceeded, they must
take the consequences of their carelessness.”
A society registered under the Act of 1836
and not incorporated under the Act of 1874
has no power of borrowing unless authorised
by its rules. Section 1 of the 1894 Act
provides that the rules of every society
under the Building Societies Acts established
or substituting a new set of rules for the
existing rules after the passing of this Act
shall set forth whether the society intends
to borrow money, and, if so, within what
limits, not exceeding those prescribed bv the
Building Societies Acts. The 1894 “
Act
(Section 28) repealed a somewhat similar
provision in the 1874 Act, Section 16, para-
graph 2, which enacted that the rules should
set forth whether the society intends to
avail itself of the borrowing powers con-
tained in this Act, and, if so, within what
limits, not exceeding the limits prescribed
by this Act. Therefore, where an ad\”ance is
required by a building society, its rules
should be carefully perused to ascertain (1)
if the society has power to borrow, and to
what extent ; (2) if^it has power to mortgage
or pledge. If the society has such powers,
it is necessary to see that such powers are
not exceeded.
All cheques should be signed in accordance
with the rules of the society.
Cheques drawn by, or on behalf of, a
registered Friendly Society are exempt from
100
BUI] DICTIONARY OF BANKING [BUY
stamp duty. The Friendly Societies Act,
1906, Section 33, provides that stamp duty
shall not be chargeable upon a ” draft or
order or receipt given by or to a registered
society or branch in respect of money pay-
able by virtue of its rules or of this Act.”
Bv Section 41 of the Building Societies
Act,’ 1S74 :—
” No rules of any society under this Act,
nor anv copy thereof, nor any power, war-
rant, or letter of attorney, granted or to be
granted by any person as trustee for the
society for the transfer of any share in the
public funds standing in his name, nor any
receipts given for any dividend in any public
stock or fund, or interest of Exchequer
bills, nor any receipt, nor any entry in any
book of receipt, for money deposited in the
funds of the society, nor for any money
received by any member, his executors or
administrators, assigns, or attorneys, from
the funds of the society, nor any transfer of
any share, nor any bond or other security ;
to be given to or on account of the society, i
or by any officer thereof, nor any order on
any officer for payment of money to any
member, nor any appointment of any agent,
nor any certificate or other instrument for
the revocation of any such appointment,
nor any other instrument or document what-
ever required or authorised to be given,
issued, signed, made, or produced in pur-
suance of this Act, or of the rules of the
society, shall be subject or liable to or
charged with any stamp duty or duties
whatsoever, provided that the exemption
shall not extend to any mortgage.”
An advance to a building society should,
preferably, be made upon a separate loan
account and not upon the ordinary current
account, so that the danger of making
advances in excess of the society’s powers to
borrow may be avoided.
When a mortgage to a building society is
repaid, the society has power to indorse a
receipt for the money upon the mortgage
deed. The effect of such a receipt is to
” vacate the mortgage,” that is, it operates
as a re-conveyance to the mortgagor. This
statutory receipt is exempt from stamp duty.
(See St.^tutorv Receipt.)
With respect to unincorporated societies,
by Section 89 of the Stamp Act, 1891-, the
exemption from stamp duty conferred by
the Building Societies Act, 1836, 6 & 7 Will.
IV c. 32, for the regulation of benefit ‘
building societies, shall not extend to any
mortgage made after July 31. 1868. except
a mortgage by a member of a benefit build-
ing society for securing the repayment to
the societv of monev not exceeding ^500.
BULL And bear. Names given to the
two kinds of speculators on a stock exchange.
A Bull is one who anticipates a rise in a
certain stock ; he therefore buys in, not
intending to pay for the purchase but hoping
to sell out later at a profit.
A Bear, on the other hand, expects a
certain security to fall in price, so he sells
stock which he does not possess, with the
object of buying in before settling day at
a lower figure, in which case the difference
would be his profit. (See Backwarpatiox.
Contango. Stock Exch.\nge.)
BULLION. Gold and silver in bars or in
the mass. The word is also used when
speaking of large quantities of gold and silver
coins, especially when regarded by weight.
BuUion is said to have been originally the
name of the office or mint where the metal
was stamped into coins.
By the Bank Charter Act. 1844, Section 4,
” all persons shall be entitled to demand from
the Issue Department of the Bank of Eng-
land, Bank of England notes in exchange for
gold bullion, at the rate of £3 17s. 9d. per
ounce of standard gold : provided always
that the said Governor and Company shall
in all cases be entitled to require such gold
bullion to be melted and assayed by persons
approved by the said Governor and Com-
pany at the expense of the parties tendering
such gold bullion.” The bank notes can be
immediately exchanged lor sovereigns at the
rate of £3 \7s. lO^d. per ounce. The differ-
ence of 1 Jrf. per ounce between gold bullion
and gold coins represents the expenses and
loss of interest upon the bullion before it is
turned into coins.
Under the Coinage Act of 1870, anyone
has the right to take bar gold, if of sufficient
fineness, to the Mint and have it coined, free
of expense, at the rate of £3 lis. lOW. per
ounce of standard gold, provided that the
value is not less than /20,000. but the owner
of the gold bullion has to wait for payment
until it is coined. Anyone requiring coins
for gold bullion would take it to the Bank
of England, where, as stated above, notes
at the rate of £3 17s. 9d. per ounce will be
given at once.
BULLION POINTS. The same as ” Specie
Points ” (</.!•.).
BUYING IN. A Stock Exchange term.
Where securities have not been delivered by
a seller to a purchaser at the appointed time,
CALEYS. A Stock E.xchange name for
Caledonian Railway ordinary stock.
CALL. A Stock Exchange term meaning
the right to buy a specified security at a
certain price within an arranged period.
[
(See Options, Stock Exchange.)
CALL MONEY. (See Money at Call
AND Short Notice.)
CALLED BOND. When a bond has been
” called in ” for payment on a certain date,
it ceases to carry interest from that date.
CALLING OVER. “Calling over” is an
essential part of the work of a bank office.
The day books should be called over daily
with the current account ledgers and other
books into which the items have passed, each
entry, as it is called out, being ticked, with
ink, in both books. In order that the calling
over may be as effectual as possible, it is
usually carried out, when practicable, by
clerks other than those concerned in writing
up the day books or posting the ledgers.
CALLS. Shares may be either fully paid
or only partly paid. If the latter, the
holders are liable, when called upon by the
310 17 2431 j
company, to pay up the amounts or ” calls “
as they are made. Calls should be made in
accordance with the company’s articles of
association or the agreement when the shares
were first issued. A hmited company may,
by special resolution, declare that any portion
of its uncalled capital shall not be called up
except in the event of the company being
wound up. (See Reserve Liability.)
Some of the clauses of Table A with respect
to calls (see Section 11 of the Companies
(Consohdation) Act, 1908, under Articles
OF Association) are as follows : —
“12. The directors may from time to time
102
CAM] DICTIOXARY OF BANKING [CAN
make calls upon the members in re-
spect of any moneys unpaid on their
shares, provided that no call shall
exceed one-fourth of the nominal
amount of the share, or be payable
at less than one month from the
last call ; and each member shall
(subject to receiving at least fourteen
days’ notice specif-ing the time or
times of payment) pay to the com-
pany at the time or times so specified
the amount called on his shares.
“13. The joint holders of a share shall be
jointly and severally liable to pay
all calls in respect thereof.
“16. The directors may make arrange-
ments on the issue of shares for a
difference between the holders in
the amount of calls to be paid and
in the times of payment.
” 17. The directors may, if they think fit.
receive from any member willing to
advance the same all or any part of
the moneys uncalled and unpaid
upon any shares held by him ; and
upon all or any of the moneys so
advanced may (until the same
would, but for such advance, become
presently payable) pay interest at
such rate (not exceeding, without the
sanction of the company in general
meeting, six per cent.) as may be
agreed upon between the member
paying the sum in advance and the
directors.”
There is usually a clause in the articles,
that, in the event of non-payment of a call
by a member, his shares will be Uable to
forfeiture.
A company can sue a member for payment
of a call at any time wthin twenty years.
(See Capital, Companies, Share Capital.)
CAMBIST. A person who deals in foreign
money’s, notes and bills of exchange. One
who is skilled in the value of foreign moneys
and the operations of exchange.
CANADAS. A Stock Exchange name for
Canadian Pacific Railroad securities.
CANCELLATION OF BILL OF EX-
CHANGE. A bill of exchange is discharged
when it is intentionally cancelled. The
Bills of Exchange Act, 1882, Section 63,
provides : —
” (1) Where a bill is intentionally can-
celled by the holder or his agent,
and the cancellation is apparent
thereon, the bill is discharged.
” (2) In like manner any party liable on
I
a bill may be discharged by the
intentional cancellation of his signa-
! ture by the holder or his agent. In
I
such case any indorser who would
have had a right of recourse against
I
the party whose signature is can-
: celled, is also discharged.
I
” (3) A cancellation made unintentionally,
or under a mistake, or without the
authority of the holder, is in-
operative ; but where a bill or any
signature thereon appears to have
been cancelled, the burden of proof
lies on the party who alleges that
the cancellation was made un-
intentionally, or under a mistake,
or without authority.”
Where a bill, or cheque, has been acci-
dentally cancelled by a banker, a note should
be made near to the cancellation that it has
been ” cancelled in error,” and the words
should be initialled, or signed, by the banker
who has made such cancellation.
When a cheque is paid, it is usually
cancelled by the drawer’s signature being
marked through with ink, and the date of
paNTment either written or stamped upon the
face of the cheque. A common method of
cancellation is to use a rubber stamp bearing
the word ” Paid ” in bold letters and the
date. Some bankers cancel by punching a
few holes in the cheques.
When a bill is paid, the acceptor’s signature
is cancelled. In the case of a dishonoured
bill, a banker usually cancels his own in-
dorsement.
The cancellation of a signature should be
decisive, but should not make the signature
illegible.
The cancellation is effected, in the case of
the cheque, by the banker upon whom it is
dra^\’n, and in the case of a bill by the banker
with whom the bill is domiciled.
It is usual for the pa>-ing cashier to initial
all the paid cheques and bills which pass
through his hands.
\Tiere cheques are paid by one bank,
under authorit}’ from another bank, the
former bank sometimes cancels the drawer’s
signature, but the practice is not the same
in all banks.
The word “cancellation” is from the
Latin cancello, to make trelhs, so that to
cancel a document is hterally to make trelhs
or lattice work upon it. (See Caxcelled
Cheques and Bills
CAPITAL. In the early stages of civilisa-
tion, sheep and cattle acted as a currency.
” Being counted by the head, the kine was
called capitale, whence the economical term
capital, the law term chattel, and our common
name cattle ” (Jevons).
In a joint stock company the capital is
the sum subscribed by the members of the
company—that is, the shareholders —for the
purposes of the business. The amount
which is authorised by the memorandum of
association is the ” nominal ” capital. Of
the nominal capital there is often only a part
of it issued, called the ” issued ” capital, the
remainder being referred to as ” unissued.”
Further portions may be issued from time
to time, until the full nominal capital has
been issued. Of the capital which has been
“issued” (called also the “subscribed”
capital) , only that part of it is paid up, or
subscribed by the shareholders, which the
directors have ” called up.” The part which
has been called up and paid is called the
” paid up ” capital, the remaining part being
termed the ” uncalled ” capital ; and it
remains unpaid until a ” call ” is made for
it by the directors. If the whole has been
called up, the shares are said to be ” fully
paid.” Of the uncalled capital, a certain
portion may, if the company has so resolved,
form a reserve liability, which is not to be
called up except in the e\’cnt of the company
being wound up. (Section 59, Companies
CAP] DICTIOXARY OF BANKING [CAS
(Consolidation) Act, 1908. see Reserve
Liability.) For example :
Nominal (or Authorised, or Registered)
Capital, 20,0U0 shares, £S each . . £100,000
Subscribed (or Issued) Capital, 10,00(1
shares £5 each £50,000
Unissued, 10,000 shares, £5 each . . £50,000
Thesubscribed capital maybe divided into ;
Paid-up Capital, 10,000 shares, £2 10s.
each £25,000
Uncalled Capital, 10,000 shares, £2 10s.
each :
Callable, £1 10s. per share . . . £13,000
Reserve (callable only in a winding
up), £1 per share £10,000
H. D. Macleod defines capital as ” an
economic quality used for the purpose of
profit.” Under the name of capital are
included money, goods, land, personal skill,
energies, labour, credit, and anything that is
used to produce a profit. But wealth, in
whatever form, if unemployed, is not capital.
There are two species of capital, circulating
or floating capital and fixed capital. Circu-
lating capital, in the words of John Stuart
Mill, ” does its work not by being kept but
by changing hands.” ” This portion of
capital requires to be constantly renewed by
the sale of the finished product and when
renewed is perpetually parted with in buying
materials and paying wages.” Fi.xed capital
produces its effect not by being parted with
but by being kept. Wealth expended in land,
buildings, docks, roads, machinery, railways,
etc., is fixed capital. (See Sh.\re C.\pit.\l.)
CAPITAL ACCOUNT. The account
which is concerned solel}’ with the capital or
funds subscribed by the shareholders in a
bank or other company, for the purpose of
carrying on the undertaking.
CENTRAL ASSOCIATION OF BANKERS.
This Association was formed in 1895 to
unite tlie committee of the London Clearing
Bankers, the West End London Banks and
the Country Banks of the United Kingdom.
It consists of one representative of each of
the Clearing Banks, two representatives of
the West End Banks and ten members
appointed by the Association of English
Country Bankers. No representatives of
Scotch and Irish Banks have yet been
appointed.
The objects of the Association are the
maintenance and protection of the interests
of bankers.
CERTIFICATE. The document which is
issued by a company, to a member of the
company, specifying the shares or stock held
by him. It is usually signed by two direc-
tors, countersigned by the secretary or
manager, and impressed with the company’s
seal. Certificates are of many different
sizes and usualh’ papers of different colours
are used for the various classes or issues of
shares and stocks.
The following is a specimen of a certifi-
cate :
Ordin.\ry Sh.\re C.\pital
Certificate No.
John Jones & Company, Limited,
incorporated under the Companies (Con-
solidation) Act, 1908.
Capital
£ in Preference shares of /I each, Nos.
1 to .
I in Ordinary shares of /I each, Nos.
1 to
Total, I
Share Certificate
This is to certify that
of
is the Registered Holder of of the
above named Ordinary shares of /I each,
numbered to , all inclusive,
in John Jones & Company, Limited, sub-
ject to the Memorandum of Association and
Regulations of the Company, and that each
of the said shares is fully paid up.
Dated this day of ,19
Directors.
The certificate may have a footnote to the
following effect :
The company will not transfer any shares
without the production of the certificate relat-
ing to such shares, which certificate must be
surrendered before any deed of transfer,
whether for the whole or any portion thereof,
can be registered, or a new certificate issued
in exchange. (Sae below.)
In a few companies, a separate certificate
was originally issued for each share. When
any of the shares are transferred, instead of
fresh certificates being issued the old ones
are simply indorsed with the transfer, and
the old certificates given to the transferee, the
transfer being registered in the company’s
books. Occasionally certificates of this
description may be found which, though the
shares have been transferred from the person
named in the body of the certificate, do not
give any indication, by indorsement or
I otherwise, of the transfer. The only ‘way
‘
to ascertain who is the registered holder is to
write to the company. In other cases where
the same certificates pass from one holder to
another, the company issues a transfer certi-
ficate (to accompany the old certificates)
certifying that ” a deed of transfer duly
executed and attested and stamped as re-
quired by law, dated from to
conveying shares numbered
from to has been deposited
in the office of the company and registered in
their books on of , 19 .”
Clause 6 of Table A (see Section 1 1 of the
Companies (Consolidation) Act. 1908, under
Articles of Association) provides : —
” Every person whose name is entered
as a member in the register of mem-
bers shall, without payment, be
entitled to a certificate under the
common seal of the company specify-
ing the share or shares held by him
and the amount paid up thereon,
provided that in respect of a share
or shares held jointl}’ by several
persons the company shall not be
bound to issue more than one certifi-
cate, and delivery of a certificate for
a share to one of several joint
holders shall be sufficient delivery to
all.”
A certificate is prima facie evidence of the
title of the memljer to the shares or stock.
(Section 23 of the above Act. See Share
Capital.)
Before an official quotation, on the London
Stock Exchange, for stocks and shares can
be obtained, the committee require that
the certificates must conform to certain
107
CER] DICTIONARY OF BANKING [CER
conditions. (See Quotation on London
Stock Exchange.)
With regard to the deUvery of certificates
and debentures by a company. Section 92
of the Companies (Consolidation) Act, 1908,
provides that :
” (1) Every company shall, within two
months after the allotment of any
of its shares, debentures, or deben-
ture stock, and within two months
after the registration of the transfer
of an}- such shares, debentures, or
debenture stock, complete and have
ready for dehvery the certificates of
all shares, the debentures, and the
certificates of all debenture stock
allotted or transferred, unless the
conditions of issue of the shares.
^ debentures, or debenture stock
otherwise provide.
” (2) If default is made in complying with
the requirements of this Section,
the company, and every director,
manager, secretarv. and other officer
of the company who is knowingly a
party to the default, shall be liable
to a fine not exceeding five pounds
for every day during which the
default continues.”
A certificate does not always show how
much is paid up per share, and this is an
important point when the question of
security is being considered
Where certificates are lodged as security, a
blank transfer {q.v.) and qualifying agree-
ment {q.v.) are taken by some banks, but
the most satisfactory way is to take a com-
pleted transfer and qualifying agreement and
have the shares registered in the names of the
nominees of the bank. (See Transfer of
Shares.) If. however, a banker does not
wish to register at once, he often takes a
fully completed transfer with qualifying
agreement and gives notice of his charge to
the company. When that is done and he
retains possession of the certificate, he has.
as a rule, a good security. A simple deposit
of certificates as security, even without a
memorandum of deposit. c( nstitutes an
equitable mortgage, and the banker can,
when necessary, apply to the Court for
power to sell. In nearly all cases, the certi-
ficate must be surrendered before a transfer
of the shares can be effected. There are,
however, several exceptions, as certificates
need not be produced when transferring
National Bank shares, Provincial Bank of
Ireland shares, and Roval Exchange Assur-
ance Corporation stock. It may be men-
tioned that the Grand Junction Canal Co.
does not issue certificates at all.
It is to be remembered that even a foot-
note upon a certificate that no transfer of
the shares will be registered without produc-
tion of the certificate is of no value in a case
of fraud. In Rainford v. /. Keith and
Blackman Co., Ltd. (1905, 1 Ch. 296), it
was held that the footnote did not consti-
tute a contract and was not binding on the
company. This case was followed and its
principle approved by Mr. Justice Channell
in Gtiy v. Waterloo Brothers and Lavton
(1909, 25 T.L.R. 515).
A certificate does not requiie a stamp.
In cases where a simple memorandum of
deposit of certificates is taken the stamp
duty is sixpence. As to foreign and
colonial share certificates, see Marketable
Security.
When a certificate has been lost and the
owner has obtained a duplicate, he should,
in the event of the document being subse-
quently found, surrender it to the company.
If the original certificate should, afterwards,
be given to a banker as security, unless he
registers it in his own name or gives notice
to the company, he may eventually discover
that the shares have been sold on surrender
of the dupHcate.
It is also possible for a certificate to be
apparently in order and yet, on inquiry,
to be found to be of no value, on account of
the shares having been forfeited ; and in
some cases where shares have been converted
the old certificate is sometimes, for one
reason or another, not handed over to the
company.
Loss of Stock Certificate. The Bank of
England, before authorising the issue of a
duplicate in the event of the loss or destruc-
tion of a stock certificate, may require :
[a) Evidence to the satisfaction of the
Bank of the loss or destruction and owner-
ship of the certificate ; and (6) a delay of
not more than one year from the date of the
loss or destruction ; and (c) the advertise-
ment of the loss or destruction in two or
more London or Dubhn daily papers (as the
case requires) ; and [d) either the transfer of
a sum of stock, of a description approved
by the governor or deputy governor of the
Bank, equivalent to the market value on the
day of transfer of the lost or destroyed
certificate, and at least six and a half years’
dividends thereon, into the joint names of
the governor and deputv go\ernor, bv way
CER] DICTIONARY OF BANKING
of security ; or the execution of a bond of
indemnity in which the owner shall be joined
by one or more responsible persons. (The
National Debt (Stockholders’ ReHef) Act,
1892, Section 7, s.s. 1.) (See Companies,
Share Capital.!
CERTIFICATE OF CHARGE. A certifi-
cate, under the seal of the Land Registry,
certifying the registration of a charge upon
land. A deposit of such a certificate is
equivalent to a hen created by the deposit of
a mortgage deed of unregistered land.
Notice of the deposit must be given to the
Registrar. (See Land Registry.)
CERTIFICATE OF INCORPORATION. On
the registration of the memorandum of
association of a company, the registrar of
companies shall certify under his hand that
the company is incorporated, and in the case
of a limited company that the company is
limited. From the date of incorporation,
mentioned in the certificate, the subscribers
of the memorandum, and others who may
become members, shall be a body corporate,
capable of exercising all the functions of an
incorporated company, and having per-
petual succession and a common seal, with
power to hold lands, but with such liabihty
on the part of the members to contribute to
the assets of the company, in the event of its
being wound up, as is mentioned in the
Companies (Consolidation) Act, 1908.
Such a certificate is conclusive evidence
that all the requirements of the Act, in
respect of registration and of matters pre-
cedent and incidental thereto, have been
complied with, and that the association is a
company authorised to be registered and is
duly registered under the Act. (See Articles
OF Association, Memorandum of Associa-
tion.)
Any person may inspect the documents
kept by the registrar, on payment of a fee of
one shilling, and any person may require a
certificate of the incorporation of any
company, or a copy or extract of any docu-
ment, to be certified by the registrar, on
payment of five shillings for a certificate of
incorporation and sixpence for each folio of a
certified copy or extract. (See Registrar
OF Companies.)
The form of the registrar’s certificate is as
follows :
” I hereby certify that the
Company, Limited, is this day incorporated
under the Companies (Consolidation) Act,
1908, and that the Company is limited.
” Given under my hand this
[CER
day
” Registrar of Joint Stock Companies.”
(See Companies.)
CERTIFICATE OF MORTGAGE OF SHIP.
A registered owner, if desirous of disposing
by way of mortgage or sale of the ship or
share in respect of which he is registered, at
any place out of the country in which the
port of registry of the ship is situate, may
apply to the registrar, and the registrar shall
thereupon enable him to do so by granting
a certificate of mortgage or a certificate of sale
(Section 36, Merchant Shipping Act, 1894).
The instrument gives particulars of the
ship and an account of mortgages or certifi-
cates of mortgages granted in respect of the
ship. The owner of the shares in the ship
appoints an attorney to mortgage the shares,
and declares that the money to be raised
under the power shall not exceed a specified
sum and that the rate of interest shall not
exceed a certain rate. He also declares that
the power of mortgaging may be exercised
at and that the power shall not be
exercised after months from the date
hereof.
The instrument is signed and sealed by
the owner, and then follows the registrar’s
certificate :—
” I registrar of hereby
certify that the above written particulars
relating to the ship and the title thereto are
correct ; and I further certify that the said
I
owner has duly subscribed and affixed his
I
signature and seal as appears above.
Registrar.”
A person who advances money imder a
‘
certificate of mortgage, when there is a
‘
previous mortgage or certificate of mortgage
‘
indorsed on the said certificate, does so at his
i own risk. His title is liable to be defeated by
the person claiming under the incumbrance
so indorsed. (See Ship—Mortgage, etc.)
CERTIFICATE OF PROTEST. (See Pro-
test.)
CERTIFICATE OF REGISTRATION. A
certificate given by the registrar of com-
panies of any mortgage or charge registered
in pursuance of Section 93 of the Companies
(Consolidation) Act, 1908 (see Registration
OF Mortgages and Charges), and stating
the amount thereby secured. The certificate
is conclusive evidence that the requirements
of the Section as to registration have been
complied with. A copy of every certificate
109
CER] DICTIONARY OF BANKING [CER
of registration is to be indorsed by the
company on every debenture or certificate of
debenture stock which is issued by the
company, and the payment of which is
secured by the mortgage or charge so
registered. (See Companies.)
CERTIFICATE OF SEARCH. A certifi-
cate issued by the Registrar of a Deeds
Registry, in response to an application for
an oitic’ial search, certifying that an official
search of the Register has been made, within
the period named by the applicant, for all
documents registered in connection with the
specified lands, and giving a list of any such
documents.
Below will be found the form of official
certificate of search as issued by the West
Riding of Yorkshire Registry of Deeds.
CERTIFICATED BANKRUPT. A bank-
rupt who holds a release from the Court of
Bankruptcv. (See Bankruptcy.)
CERTIFICATION OF CHEQUES. In the
United States cheques are freely ” certified “
by bankers, the certification being equal to
an acceptance by the banker. When an
American banker accepts or certifies a cheque,
he charges the amount at once to the drawer’s
account and holds it in a special account
against his habiUty upon the cheque. By
the law of that country ” where the holder
of a cheque procures it to be accepted or
certified, the drawer and all indorsers are
discharged from hability thereon.”
In this country, cheques are often, for the
convenience of bankers in connection with
the clearing of cheques, ” marked ” as good,
and in special cases they are sometimes
” marked ” at the request of the drawer.
CERTIFICATION OF TRANSFERS. (See
Certified Tr.\nsfer.)
CERTIFIED CHEQUE. A cheque which
is marked or certified by a banker that it is
good for the amount for which it is drawn.
(See Certification of Cheques. Marked
Cheque. )
CERTIFIED COPY. A certified copy, or
office copy, of a will is one that has been
examined with the original and certified by
the registrar as being a true copy.
For stamp duty see Copy. (See .Attested
Copy, Office Copy.)
CERTIFIED TRANSFER. Transfers are
often certified upon the margin by the
secretary or registrar of a company, that the
certificates for the shares dealt with in the
transfer are in the company’s office. The
words generally used are, ” Certificate for
shares, paid, has been lodged
at the company’s office. Date
“The Company, Limited,
, Secretary.”
Or sometimes the words are ” Coupon for
£ received at the company’s office by
The certification is for the purpose of
facilitating dealings in shares. The broker
for a transferor sends the certificate and
transfer to the company to be certified, and
the transferee accepts the certification as an
assurance that the certificate is apparently
in order.
In Bishop v. Balkis Consolidated Co.
(1890, 25 Q.B.D. 512), Lindley, L. J., said :
” In my opinion, it is proved that to give
‘ certifications ‘ is incidental to the trans-
action, in the ordinary business way, of part
of the legitimate business of all companies
having capital divided into shares which
are transferable by deed or other instru-
ment.”
Such a certification, however, does not
appear to put much responsibility upon the
company. In Peat v. Clayton (1906, 1 Ch.
659). Joyce, J., said : ” It only amounts to
a representation that a document has been
lodged with the company, apparently in
order, and showing, pritnd facie, that the
transferor is entitled to the shares, but it is
no warranty of the transferor’s title to the
[CHA
shares, or as to the validity of any of the
documents, or that the company has received
no notice in lieu of distringas, or any other
notice affecting the matter.” In George
Whiiechurch, Limited, v. Cavanagh (1902,
A.C. 117), Lord Macnaghten said: “There
is no obligation on a company to certify
transfers at all. The certification is not
passed bv the directors or brought before
the board. A certification, in fact, is only
required for a temporary purpose, to meet
the exigencies of business on the Stock
Exchange, which has stated days and fixed
periods for the different stages of a business
transaction intended to be carried out under
its rules.”
Transfers are also certified by the secretary
of the Share and Loan Department of the
London Stock Exchange.
By Rule III of the Stock Exchange “The
buyer of securities may refuse to pay for a
transfer deed imaccompanied by the certi-
ficate, unless it be officially certified that
the certificate is at thcoffice of thecompany.”
(See Balance Ticket, Tr.ansfer of Shares.)
CESSIO BONORUM. In Scotland, an
assignment, bv an insolvent debtor, of his
property for the benefit of the creditors.
(See Assignment for Benefit of Cre-
ditors.)
CESTUI QUE TRUST. A person in
whose favour a trust operates, that is, who
is beneficially interested in the estate.
If Brown holds land in trust for Jones,
Brown is the trustee and Jones is the
cstiii que trust. Brown has the legal estate
in the land, and Jones has an equitable
estate in it.
Plural, cestnis que trustent.
CESTUI QUE USE. The person in
whose favour a use or trust in real property
has been declared.
CESTUI QUE VIE. When property is
held by one person during the life of another,
the person whose life is the period of the
duration of the estate is called the cestui
que vie. An estate thus held is commonly
called an ” estate ptir autre vie.”
CHARGES. As it is the practice of
bankers to calculate the interest and com-
misson upon customers’ accounts half-
yearly, the charges should not be added at
caprice at any time.
If a cheque is dishonoured by reason of
charges having been added, without the
customer’s knowledge, at other than the
usual date, the customer would have a claim
against the banker for wrongful dishonour.
Ill
CHA] DICTIONARY OF BANKING CHA
CHARGES. (See Registr.\tiox of Mort-
gages AND Charges.)
CHARGES (CLEARING HOUSE). A
parcel of cheques which one member of the
Clearing House delivers to another member
upon whom they are drawn, and against
whom they are charged, or, in the case of
the country clearing, upon whose country
correspondents they are drawn. (See
Clearing House.)
CHARGING ORDER. Where a creditor
has obtained judgment against a debtor for
the payment of a debt, he may obtain from
the Court an order charging, with the pay-
ment of the judgment debt, any shares or
stock standing in the name of the debtor,
or in the name of any person in trust for
him. The effect of the order is to prevent a
company from registering any transfer, or
pajdng any dividend to the shareholder, in
respect of the shares or stock so charged.
At the expiration of six calendar months
from the date of the order, the judgment
creditor may proceed to take the benefit
of the charge. (See Garnishee Order.)
CHARITABLE COMPANIES. In the case
of associations which exist for promoting
certain useful objects, the Companies (Con-
solidation Act), 1908. Section 19, provides :
•
‘ A company formed for the purpose of
promoting art, science, religion, charity or
any other like object, not involving the
acquisition of gain by the company? or by its
individual members, shall not, without the
licence of the Board of Trade, hold more
than two acres of land ; but the Board may
by licence empower any such company to
hold lands in such quantity, and subject to
such conditions, as the Board think fit.”
The Board of Trade may b\’ licence direct
that such an association be registered as a
company with limited liability, without the
addition of the word ” Limited ” to its name.
It is exempt from sending Usts of members
and directors and managers to the registrar
of companies.
CHARTER. The duty imposed bv the
Stamp Act, 1891, is :—
i s. d.
Charter of resignation, or of con-
firmation, or of novodamus or
upon apprising, or upon a
decreet of adjudication, or sale
of any lands, or other heritable
subjects in Scotland .050CHARTER PARTY. An agreement by
which the owners of a ship, or their agents,
agree to place the vessel at the disposal of
a merchant, the charterer, for the convey-
ance of a full cargo of goods. A charter-
party ma}’ be for one or more voyages or for
a definite period of time, or it may effect a
demise of the ship for any length of time
that may be agreed upon.
The wording of the agreement varies
somewhat according to the trade in connec-
tion with which it is used. The following
is a specimen of a charter party :
COM] DICTIONARY OF BANKING [COM
transfer of stock, or funded debt, as
the case may be, or upon issue of any
share warrant, or stock certificate
relating thereto, to require payment
of an amount not exceeding the
amount of duty which would have
been chargeable upon the transfer or
share warrant or stock certificate if
no such agreement had been entered
into.”
COMPOSITION WITH CREDITORS.
Where a debtor is unable to pay his creditors,
he may, legally, call his creditors together
and make an arrangement with them, by
which he may obtain relief from his debts,
and one of the usual methods by which this
is done is to offer to pay a composition; that is,
to pay so much in the pound in full discharge
of the debts due to the creditors. The com-
position is usually payable in a number of
instalments, upon specified dates, and is
guaranteed by sureties. In some cases
promissory notes are given for the various
instalments, and are made payable at the
various dates on which the instalments are
due.
If the arrangement is agreed to by the
creditors in a deed or instrument, called a
deed of arrangement, it must be registered
within seven days, otherwise it is void. (See
Deed of Arrangement.)
An arrangement of this kind between a
debtor and his creditors is quite independent
of proceedings under the Bankruptcy Acts,
but, if he fails to pay the agreed instalments,
the arrangement does not prevent proceed-
ings in bankruptcy being subsequently taken.
In ” The Laws of England,” edited by the
Right Hon. the Earl of Halsbury, the fol-
lowing is given as the effect of a debtor
failing to pay an instalment : “If the effect
of the arrangement is that the creditors
accept the payment of the composition in
discharge of their debts, then usually a
failure by the debtor to comply with” his
obligation will entitle the creditors to sue
him for the whole of the balance of their
debts. But if the effect of the arrangement
is that the creditors accept the promise of
the debtor with or without a surety in
satisfaction of their debts, on default by the
debtor the creditors can only sue for the
balance oi the amount of the composition.”
Win ic a ( ustomer makes an arrangement
Willi hi,-^ neilitors. a banker should, if neces-
sary, seek legal advice as to whether or not
an act of bankruptcy has been committed
(see Acts of Bankruptcy), because if it has,
the account must be stopped at once. (See
Assignment for Benefit of Creditors,
Bankruptcy.)
COMPOSITIONS (BANKRUPTCY ACT).
When a receiving order has been made
against a debtor, he must, within a certain
time, submit a statement of his affairs to the
official receiver. (See Receiving Order.)
If the debtor wishes to submit to his cre-
ditors a proposal for a composition—that is,
a payment of so much in the pound—or for a
scheme of arrangement, the Bankruptcy
Act, 1890, provides as follows :^
” Section ‘3. (1) Where a debtor intends
to make a proposal for a composition
in satisfaction of his debts, or a pro-
posal for a scheme of arrangement
of his affairs, he shall, within four
days of submitting his statement of
affairs, or within such time there-
after as the official receiver ma^- &k,
lodge with the. official receiver a
proposal in writing, signed by him,
embodying the terms of the com-
position or scheme which he is
desirous of submitting for the con-
sideration of his creditors, and
setting out particulars of any sureties
or securities proposed.
” (2) In such case the official receiver shall
hold a meeting of creditors, before
the public examination of the debtor
is concluded, and send to each
creditor, before the meeting, a copy
of the debtor’s proposal with a
report thereon ; and if at that meet-
ing a majority in number and three-
fourths in value of all the creditors
who have proved resolve to accept
the proposal, the same shall be
deemed to be duly accepted bj? the
creditors, and when approved by the
court shall be binding on all the
creditors.”
The Court has power to approve or to
refuse to approve the proposal (s.s. 10).
If the debtor’s proposal is accepted by the
creditors, the receiving order is discharged
by the Court. If a trustee is appointed to
carry out the scheme, the official receiver
hands the debtor’s property to him, but if
no trustee is appointed the official receiver
acts as trustee.
If the proposal is not accepted within four-
teen days after the conclusion of the debtor’s
examination, the Court shall adjudge the
debtor bankrupt. (See .Adjudication of
Bankruptcy.)
140COM] DICTIONARY OF BANKING LCON
A composition or scheme of arrangement
may be accepted by the creditors, if they
think fit, at any time after the debtor is
adjudicated bankrupt, and the Court may
annul the bankruptcy. (Section 23, s.s. 1,
2.)
If default is made in payment of an instal-
ment, the Court may adjudge the debtor
bankrupt and annul the composition or
scheme, but without prejudice to the validity
of any sale, disposition, or payment duly
made in pursuance of the composition or
scheme. (Section 23, s.s. 3.)
Debts are proved in the same way as in
the case of bankruptcy. (See Bankruptcy.
Proof of Debts.)
COMPOUND INTEREST. Compound in-
terest is interest upon interest which is not
paid. Upon current accounts a banker
calculates the interest half-yearly and adds
it to the principal, when it becomes part of
the principal, and upon that amount interest
is forthwith charged or allowed as the case
may be.
A ready way of ascertaining approxi-
mately the number of years in which a sum
will double itself at compound interest, is
to divide seventy by the rate per cent. (See
Interest.)
COMPOUNDING A FELONY. If an offi-
cial commits a felony, e.g., an embezzlement,
and someone provides the bank \v-ith money
or securities to cover tire defalcations, in
order to prevent the institution of a pro-
secution, this is called compounding a
felonv.
In’Whiimorc v. Fairley (1S80, 29 W.R.
825), Lush, L. J., in the course of his judg-
ment, said :
—” It is as old as the law itself
that compounding a felony is not merely an
illegal, but a criminal act. It follows that
every agreement by a prosecutor to forego
a prosecution, in consideration of a benefit
to himself, is an illegal agreement which the
law will not sanction. A person who is
robbed cannot be compelled to prosecute.
No doubt it is his duty to society to do so,
but it is an imperfect obligation. If, how-
ever, he does prosecute, he assumes the olfice
of a public prosecutor, and prosecutes on
behalf of the public. If he enters into a
bargain not to prosecute, that is just as
much void as if it was made after prosecu-
tion commenced. This is not confined to
felony. The law is just the same with regard
to cases of misdemeanour.”
COMPOUNDING WITH CREDITORS.
(See Composition with Creditors.)
I COMPULSORY LIQUIDATION. (See
Winding I’p by the Court.)
COMPUTING A BILL. Calculating the
date upon which the bill falls due to be paid.
CONDITIONAL INDORSEMENT. Where
a condition is attached to an indorser’s
j
signature on a bill of exchange, the condition
may be disregarded by the paying banker,
‘
and payment to the indorsee is valid whether
the condition has been fulfilled or not.
(See Indorsement.)
CONDITIONAL SURRENDER. A sur-
render of copyhold property into the hands
of the lord of the manor for the benefit of a
I
mortgagee, the condition being that when
j
the mortgage money has been repaid, the
! surrender must be cancelled by satisfaction
being entered on the court rolls.
For the stamp duty see Mortg.\ge and
Section 87, s.s. 4 and 5, of the Stamp Act,
1891, quoted thereunder.
The following is an example of a con-
ditional surrender and admittance, though
a mortgagee is usually satisfied by the
conditional surrender being entered on the
court rolls, without seeking admittance :
I
Manor of^-“^^® Special Court Baron and
/Customary Court of
!
Lord of the said Manor holden at
!
for the said Manor on
day of 19
Before . Steward.
To this Court came A. B.
and did surrender into the
hands of the Lord of the said
Manor, All that Cottage, etc.,
of the Yearly Copyhold Rent
of To the use and behoof
of C. D., his heirs and assigns
for ever according to the Cus-
tom of the said Manor Upon
the Condition that if the said
A. B., his heirs, executors,
C s. d. administrators or assigns shall
Rent . . on the day of
^'””^ • • next ensuing pay or cause to
be paid unto the said C. D., his
executors, administrators or
assigns the Sum of £
and interest for the same at
the rate of per centum
per annum And also all Cus-
tomary outgoings whatsoever
(whether for fines, fees of ad-
mission, acknowledgment of
satisfaction, licence to demise.
141CON] DICTIONARY OF BANKING [CON
heriots, reliefs, suits and ser-
vices or the value thereof or
otherwise howsoever) which
the said C. D., his executors,
administrators or assigns shall
render or pay in respect of the
said Copyhold hereditaments
with interest for the same at
the rate aforesaid without de-
duction then this Surrender to
be void. And thereupon to
the same Court came C. D.
and took of the Lord of the
said Manor by the hands of
his Steward the Cottages etc.
aforesaid with the appurten-
ances To hold the same to
him his heirs and assigns for
ever according to the Custom
of the said Manor Upon the I
Condition aforesaid Paying
the Rents and performing the
services of Right due and
accustomed and having paid
the Lord for his Fine as in
the margin and done his fealty-
is thereupon admitted tenant
according to the statute.
, Steward.
(See Copyhold.)
CONFIDENTIAL INQUIRIES. (See
Banker’s i_)pixiox.)
CONFIRMATION CHEQUE. A cheque
given by a customer to confirm a debit, which,
for one reason or another, has been passed
to his account pending receipt of the cheque.
CONFIRMATION OF BALANCE. Many
banks send out to each current account
customer (or to a selected number), either
yearly, or half-yearly, a form showing the
balance of the customer’s account, with a
request that the form, if correct, be signed
by the customer and returned to the bank.
The balance on that form should be the same
as the balance shown by the pass-book, and
before a customer signs it, he ought to
scrutinise the entries in the pass-book to see
that they are in agreement with his own
records, and then compare the balance of the
pass-book with that stated on the form.
In some of the banks in Scotland, con-
firmations are signed in the ledgers.
CONSIDERATION. Consideration has
been defined as ” some right, interest, profit,
or benefit, accruing to one party, or some
forbearance, detriment, loss, or responsibility
given, suffered, or undertaken by the other.”
Upon a sale of property, the purchase
price is the consideration, and that amount
is inserted in the deed of conveyance, and
the stamp dutj’, ad valorem, calculated
thereon.
In a deed of gift, as, for example, where a
property is the subject of a gift from, say. a
father to his son, the consideration may be
” natural love and affection.” With regard
to the stamp duty on gifts inter vivos, the
Finance (1909-10) Act, Section 74, enacts
that any conveyance operating as a voluntary’
disposition inter vivos, shall be chargeable
with the same duty as if it were a con-
veyance on a sale, with the substitution of
the value of the property conveyed for the
amount of the consideration. (See Con-
VEY.ANCE.)
The consideration named in a transfer,
upon a sale of stock or shares, may differ
from the amount received by the original
seller, owing to subsequent sales having
taken place. The price paid by the last
purchaser is the one inserted in the transfer,
and on which stamp duty is paid. The
difference is explained in a printed foot-note
on transfer forms, and this foot-note justifies
a transferor in executing a transfer where
the consideration differs from the amount
received by him.
In a transfer of shares to a bank or its
nominees as security for a loan or advance,
the consideration is usuaUj’ a nominal one,
say five or ten shillings ; and the same
nominal consideration is inserted in a
transfer when the shares are being transferred
as a gift.
Where shares are specificaUy left in a will,
the consideration in a transfer from the
executors to the legatee will be a nominal
one ; but where a legatee agrees to accept
a transfer of certain shares, instead of re-
ceiving the cash to which he is entitled, the
consideration must be the price agreed upon
betAveen the legatee and executors, and the
stamp duty will be ad viilort’iii.
All deeds prior to the Conveyancing Act,
1881, should have indorsed thereon a
receipt for the consideration stated in the
body of the deed. Since that date it is
sufficient if the receipt is in the body of the
deed. It must, however, be an actual
receipt and not simply a statement that the
money has been paid. (See Nominal Con-
sideration.)
CONSIDERATION FOR BILL OF EX-
CHANGE. There must be a valuable
consideration for a contract not under seal.CON] DICTIONARY OF BANKING
though it is not necessary that the considera-
tion be stated in writing.
The Bills of Exchange Act, 1882, Section
3, s.s. 4. enacts that a bill is not invalid by
reason ” that it does not specify the value
given, or that any value has been given
therefor.”
The words ” for value received ” are very
commonly used as the last words in the body
of a bill of exchange, but a bill is quite vahd
without any such words.
The word ” sterUng ” was at one time
usually written after the amount, but it
is now very rarely met with on inland
bills.
By Section 27 :—
“(1) Valuable consideration for a bill
may be constituted by
” (a) Any consideration sufficient
to support a simple con-
tract ;
” (6) An antecedent debt or lia-
bihty. Such a debt or
liabilit}’ is deemed valuable
consideration whether the
bill is payable on demand or
at a future time.”
Where a person signs a bill as drawer,
acceptor, or indorser, without receiving value
therefor, he is an accommodation party.
(See Accommodation Bill.)
Where a cheque is given as a gift, the
receiver cannot sue the giver thereon,
because of the absence of consideration.
” Natural love and affection,” though a
good consideration in a contract under seal,
is not sufficient to support a simple contract,
as in a bill of exchange. The consideration
must have some actual value, though the
extent of that value may, in reality, be very
small.
Mr. Justice Lush said (in Currie v. Misa,
1875, L.R. 10 Ex. 162) : “A valuable con-
sideration in the sense of the law, may
consist either in some right, interest, profic,
or benefit accruing to one party, or some
forbearance, detriment, loss, or responsi-
bility given, suffered, or undertaken by the
other.”
The title of a person who negotiates a bill
is defective if he obtained the bill for an
illegal consideration (Section 29, s.s. 2).
Where a consideration is affected with
fraud or illegahty. that would form a good
defence against an ” immediate party “
(see Immediate Parties), but not against a
remote party who is a holder in due course,
that is, one who took the bill for value, in
[CON
good faith and without knowledge of any
defect in the title. (See Holder in due
Course.)
A bill, or cheque, given for a wagering or
gaming debt, cannot be sued upon by a holder
who took it with knowledge of the illegal
consideration, but a holder in due course,
who took it without such knowledge, can
sue upon it.
It has also been decided in MouKs v. Owen
(1907, 1 K.B. 746), that even when a cheque
is drawn in a foreign country on a banker
in this country, for a consideration which is
legal in the countr)? where it is drawn, but
illegal in this country, the action on the
cheque fails. This was a decision of the
Court of Appeal, and Lord Justice Fletcher
Moulton disagreed with the finding of the
other two Lord Justices. (See Bill of
Exchange.)
I CONSIGNATION RECEIPT. In Scotland,
I
when property is sold under powers con-
tained in a ” bond and disposition in secu-
rity ” (q.v.), the creditor who has sold the
property must, after satisfying his own
claim, place any surplus there may be in a
‘
bank upon deposit receipt, called a consigna-
tion receipt, in the joint names of the seller
and purchaser, for the benefit of the person
I who is entitled to the surplus.
CONSOLIDATION OF MORTGAGES.
Where a person holds several mortgages on
different properties, belonging to the same
mortgagor, a right to consolidate the mort-
I
gages may be given to him by the mortgagor,
i
and he can then refuse to allow one mortgage
to be redeemed without the others being also
redeemed. If there are two properties, it
has been held that the mortgagee has no
right to consolidate, unless there has been
default with both mortgages.
The right to consolidate must be specially
granted in one of the mortgage deeds. That
restriction was made by Section 17 of the
Conveyancing Act, 1881 :
‘ (1) A mortgagor seeking to redeem any
one mortgage, shall, by virtue of this
Act, be entitled to do so, without
paying any money due under any
separate mortgage made by him,
or by any person through whom he
claims, on property other than that
comprised in the mortgage which
he seeks to redeem.
‘
‘ (2) This Section applies only if and as far
as a contrary intention is not
expressed in the mortgage deeds or
one of them.” (See Mortgage.)
143CON] DICTIONARY OF BANKING [CON
CONSOLS. A contraction of ” consoli-
dated funds ” and ” consolidated annuities.”
The Government borrowed money at
different times and set aside a portion of the
revenue to pay the interest or annuity upon
each separate loan. The various loans were,
in 1752, made uniform and consolidated into
one fund, called the Three per cent. Con-
sohdated Annuities, or ” 3 per cent.
Consols.”
When Consols are bought, the purchaser
obtains a receipt. This receipt, however,
is not of any value, the purchaser’s title
being the entry in the books of the Bank of
England. A transfer of consols is effected
by the owner attending personally at the
Bank of England or by his authorising an
attorney to act for him. The interest is due
on January 5, April 5, July 5, October 5.
Consols are marked ex dividend about four
weeks before the interest is due. (See Power
OF .\ttorney—Transfer of Government
Stock.)
If desired, stockholders can obtain cer-
tificates to bearer, with coupons attached
for the interest. (See N.\tion.\l Debt.)
CONSTAT. The name given to an ex-
emplification under the Great Seal of any
letters patent made by His Majesty. (See
Exemplification.)
CONSTRUCTIVE NOTICE. (See Notice
OF Mortgage.)
CONTANGO. The contango is the charge
made by a stockbroker to a speculator for
” carrying over ” the stock transaction he
has had with him until the next Stock
Exchange settlement.
For example, a person buys a certain stock
which he does not intend to pay for, hoping
that it will rise before the fdlluwiiig settle-
ment, in which case li< u,.iil.| sell out at
once, neither paying nm ie.,ei\ in;.; the price,
but only the profit Iruni his broker ; the
stock, however, contrary to his expectation,
may fall instead of rising, and, as the
speculator still hopes for improvement,
rather than sell out at a loss he arranges
with his broker to ” carry over ” or ” con-
tinue ” the bargain until the next settle-
ment after the present one ; for the loan of
the money to enable this to be done, the
broker makes a charge which is known as
” the contango.” In the above case the
speculator is called a ” bull,” that is, one
who anticipates a rise in the stock dealt in.
The broker for the ” bull ” borrows the
money, at ” making up ” price, to pay for
the stock, and gives the lender the stock,
agreeing at the same time to take it back
at the next settlement. The lender will
probably be a ” bear,” who requires that
particular stock. If, however, there is a
scarcity of that stock, a ” bear ” may be so
anxious to secure it that he will pay the
“bull” a “backwardation” rate for the
loan of the stock instead of the ” bull “
paying interest for the loan of the money.
(See Backwardation, Contango Day, Stock
E.XCHANGE.)
CONTANGO DAY. The first of the three
days of a Stock Exchange settlement, being
the one on which a broker must know
whether a speculator dealing with him
intends to complete on the next day but one
(pay day) or whether he wishes to have the
transaction ” carried over ” until the follow-
ing settlement. For mining shares there is
an additional contango day, called ” mining
contango day.”
Contango day is also called ” making up
day ” or ” continuation day ” or ” carrying
over” day. (See Contango, Settling
Days.)
CONTINGENT ACCOUNT. An account
to which amounts may be placed to provide
for uncertain liabilities.
CONTINGENT LIABILITY. A liability
which is uncertain. For example, if Brown
has given a guarantee on behalf of Jones, it
forms a contingent hability ; if Jones fails,
the guarantee will become an actual liabihty
and must be met by Brown. It is necessary,
in the event of Brown furnishing his banker
with a copy of his balance sheet, that the
banker be advised of the existence of the
guarantee or of any other habihty dependent
upon a contingency.
CONTINGENT REMAINDER. (See
Remainder.)
CONTINUATION DAY. The first of the
three days of a Stock Exchange settlement.
Also called “Contango Day” [q.v.). (See
Stock Exchange.)
CONTRA ENTRY. An entry made upon
one side of an account to correct an entry
which has been made in error upon the other
side.
EASEMENTS. The rights which the
owner of a property- mav have over the
property belonging to another person, such
as rights of way, rights of Ught, rights of
air, rights of water, rights of support, etc.
An absolute right of way may be acquired
by the uninterrupted use for forty years,
unless the use was granted in writing by the
owner of the land. A right of light over
another person’s propertj’ (except when
the privilege is granted in writing by the
owner of the property) is acquired after an
enjoj’ment of it for tr^ventv years.
These easements or rights are called
incorporeal hereditaments.
EASTERNS. A Stock Exchange name
for Great Eastern Railwav ordinarv stock.
” EFFECTS NOT CLEARED.” If a cus-
tomer pays in to the credit of his account a
cheque drawn upon another banker, and the
customer is given to understand that he
must not draw against it until the cheque
has been collected, in the event of the
customer issuing a cheque which is presented
before the proceeds are received, the banker
is entitled to return the cheque marked
” effects not cleared.”
If, however, there is no particular arrange-
ment with the customer that cheques will
not be paid against uncleared effects, the
banker is probably not entitled to return
a cheque so marked. In Capital and Coun-
ties Bank V. Gordon (1903, A.C. 240), Lord
Lindley said : ” It must never be forgotten
that the moment a bank places money to its
customer’s credit, the customer is entitled to
draw upon it, unless something occurs to
deprive him of that right.”
A banker could probably protect himself
by printing a notice in all his pass books or
on all paying-in slips, that customers would
not be at hberty to draw against uncleared
cheques. Some banks have a notice on
paying-in slips to the following effect :
” Cheques, etc., for collection, though
credited to the account when paid in, are
not available for drawing against until the
proceeds have been received at the branch.”
EMBEZZLEMENT. (See Compounding
A Felony.)
ENDORSEMENT. Same as Indorsement
(q.v.).
ENDOWMENT POLICY. A poUcy of
assurance which is payable on the assured
ENF] DICTIONARY OF BANKING |EQU
surviving to a certain age, or payable at
death if it occurs before that age. (See Life
Policy.)
ENFACED PAPER. A name given to the
promissory notes (Rupee Paper) of the
Indian Government, which bear an an-
nouncement that the interest is payable by
drafts obtainable on presentation of the
notes at the Bank of England. (See Rupee
Paper.)
ENFRANCHISEMENT. Under the Copy-
hold Act of 1894 the lord of the manor or
the tenant of copyhold land may, under
certain provisions as to compensation,
require it to be enfranchised. By enfran-
chisement the land is freed from all duties
to the lord of the manor, and the owner
henceforth holds it as freehold land. If
the lord makes a legal conveyance in fee
simple to the copyholder, the copyhold is
extinguished.
By the Conveyancing Act of 1881 :
” Section 3, s.s. 2. Where land of copyhold
or customary tenure has been converted into
freehold by enfranchisement, then, under
a contract to sell and convey the freehold,
the purchaser shall not have the right to call
for the title to make the enfranchisement.”
ENTAILED ESTATE. Where land is
granted to a person and the heirs of his body,
it is said to be entailed, and the estate is
called ‘ estate tail.” When the land is
freed from the entail, it is said to be
disentailed. (See Est.\te Tail, Disentail.)
EQUITABLE ESTATE. The estate, or
interest, which a person may have in land,
according to equity, as distinguished from
an estate or interest, according to law.
There may be both estates, the legal and
the equitable, in the same piece of land. A
mortgagee has the legal and the mortgagor
has the equitable estate. If the money lent
is not repaid according to the terms of the
mortgage deed, the mortgagee becomes, by
law, the owner of the land, but the mort-
gagor, who is, by equity, the real owner, has
the equity of redemption or right to redeem
his land on payment of the debt and interest.
A trustee holds the legal estate and the
person in whose favour the trust operates
has an equitable estate.
A second mortgagee has only an equitable
estate in the property. (See Equity of
Redemption.)
EQUITABLE MORTGAGE. Where a
borrower gives to a lender, as security, the
title deeds of his property, without any !
document of charge, or the deeds with a
memorandum of deposit, or even a memo-
randum of charge without the deeds, it is
an equitable mortgage. An equitable mort-
gage does not convey the legal estate to the
lender, as does a legal mortgage, but in the
memorandum which usually accompanies
the deposit of deeds, the borrower, as a rule,
promises to grant a legal mortgage when
requested to do so.
Where a legal mortgage has been granted
upon a property and the borrower raises
further money by a second or a third mort-
gage, those subsequent charges, whether by
deed or otherwise, are merely equitable
mortgages.
Where a person has only an equitable
estate in land as, for example, where the legal
estate is vested in a trustee for his benefit,
any charge that he gives upon that estate
will only be an equitable mortgage.
An equitable charge may be created by a
written agreement to grant a mortgage, or
by sending the deeds to a party for the
purpose of having a legal mortgage prepared
or by a written promise to lodge certain deeds
as security.
An equitable mortgagee by deposit of
title deeds, when he desires to realise his
security, requires to go to the Courts for
power to sell, or to appoint a receiver or to
foreclose, or to enter into possession. If.
however, he obtains a legal mortgage he has
power to sell or put in a receiver without
applying to the Courts.
Where there are two equitable mortgages
on the same property, priority will be given
to a second equitable mortgagee who holds
the title deeds, if the first equitable mort-
gagee was neghgent in not retaining posses-
sion of the title deeds. But if there has not
been neghgence, priority in order of time
prevails. If a second equitable mortgagee
made his advance, without knowledge of the
prior equitable charge, he may, in most
cases, secure priority by obtaining a legal
mortgage.
Instead of an order for foreclosure the
Court may. if it thinks fit. direct a sale of the
mortgaged property ; and in an action for
redemption the mortgagor may have an
order for sale, or for sale or redemption in the
alternative. (See Section 25 of the Con-
veyancing and Law of Property Act, 1881,
under Legal Mortgage.)
For the purposes of the Stamp Act, 1891,
” equitable mortgage ” means an agreement
or memorandum, under hand only, relating
to the deposit of any title deeds or
213
EQU] DICTIONARY OF BANKING [EQU
instruments constituting or being evidence of
the title to any property wliate-er (otlier
than stock or marketable security) , or creating
a charge on such property. (Section 86.
s.s. 2. See Mortgage.) Mortgages subse-
quent to the first legal mortgage, are, legally,
equitable mortgages, but it should be noted
that these equitable mortgages are not
included in the definition of ” equitable
mortgage ” under the Stamp Act.
A second mortgage by deed. fThe duty is the
A memorandum of deposit- ^„^S?ga|e%e
under seal l mortgage).
.\ memorandum of deposit of (P°’^ ^^’^”^ ifio”,
deeds under hand (whether ‘
?iona’i”part”o(
a principal securit}’ or col- 1 O-oa of the
lateral security) …. I c™cd”is.
The stamp on a memorandum of deposit
of certificates is sixpence for any amount. [
If a power of sale is included in a memoran- i
dum under hand it requires to be stamped
the same as a mortgage.
A letter or memorandum of deposit must
be stamped within thirty days of its date,
or, if received from abroad, within thirty
days of its receipt in this country.
By an Inland Revenue Circular : —
The instruments given to banks to secure
overdrafts are almost invariabh’ worded as
securities for all sums due or to become due.
In the case of equitable mortgages, every
security, whether primary or collateral, is
chargeable with the duty of Is. per cent, on
the highest amount at any one time due in
respect of the indebtedness secured to the
bank up to date (i.e., within thirty days) and
with additional duty from time to time, if
the indebtedness should subsequently reach,
at any one time, a higher total. In no case
can the value of the security deposited be
taken as the basis of assessment for mortgage
duty. (See copy of the Circular under
Mortgage.)
For instance, if the deeds of several
different properties are lodged as security,
with a separate memorandum for each to
cover the overdraft, each memorandum
requires to be (according to the above
Circular of the Inland Revenue) stamped to
cover the full amount secured.
A memorandum, unless a fixed amount
has been inserted in it, may be further
stamped to cover an additional overdraft,
but the Stamp Authorities may, before
stamping it with the extra stamp, require
the banker to state what has been the highest
amount of overdraft and the date when it
occurred. It must be stamped for the
additional amount within thirty days of the
extra overdraft being taken.
If a fixed amount is inserted in the
memorandum of deposit, the security cannot
be made available for any greater amount
than that stated in the document. If the
property is to form a security for more than
that amount, a fresh memorandum must
be taken.
If a memorandum of deposit is unstamped
or insufficiently stamped, it cannot be
accepted as evidence in a Court of Law or
Equity. An instrument which has not been
stamped within the prescribed time may
be stamped at any time afterwards under a
penalty of £10. Neglect to stamp a memor-
andum does not affect the validity of it.
In Scotland, a deposit of title deeds, either
with, or without, a memorandum of deposit,
does not create an equitable mortgage, as
in England. If, therefore, a banker in
England advances against real property in
Scotland, the form of charge must conform
to the law of Scotland. (See Disposition
Absolute, Mortgage, Title Deeds.)
EQUITY. The administration of justice,
not according to the strict letter of the law
but according to the circumstances of each
case so as to give an equitable decision.
EQUITY OF REDEMPTION. The right
which a mortgagor has to redeem his pro-
perty. For example, if John Brown is the
absolute owner of a piece of land, and he
mortgages the land to John Jones to secure
the repayment of a loan which Jones has
granted to him, Jones obtains by that deed
the legal estate in the land, and if Brown
fails to repay the money at the proper time,
Jones becomes, according to law, the owner
of the land. The Court of Equity, however,
regards Jones’ title to the land as being
subject to Brown’s right to repav the money.
Brown is the real owner of the land, and
though Jones may, by law, become the full
owner (through Brown’s failure to pay at
the appointed time), Brown has, by equity,
the ” equity of redemption ” in the land,
that is, the right to redeem it upon payment
of the money due, with interest and certain
charges incurred by Jones in protecting his
security. In the case of a legal mortgage,
after the date of payment has gone past,
unless Jones has demanded re-payment of
the money lent. Brown must give six months’
notice of his intention to exercise his equity
of redemption. In the case of an equitable
mortgage Brown can repay at an>- time
without notice.
214
EQU] DICTIONARY OF BANKING LEST
So long as Brown holds the equity of
redemption he may sell the land, or borrow
more money upon the land, if the value will
admit of it, by means of a further mortgage.
If he .sells it, the purchaser obtains the land,
subject to the mortgage to Jones. If he
raises an additional loan from Smith upon
mortgage of the land, it is a second mortgage
and ranks after the one to Jones ; and if
there is sufficient margin of value he ma}’
borrow more money in other quarters and
grant still further mortgages. It should be
noted, however, that the legal estate in the
land was con\’eyed to Jones in the first
mortgage, and that any subsequent mort-
gages convey only an equitable estate in the
property. All mortgages subsequent to the
first are called equitable mortgages.
If Brown fails to pay the interest due
under the mortgage to Jones, and Jones
enters into possession of the land and con-
tinues in possession for twelve years, without
giving any acknowledgment in writing that
Brown is still entitled to the equity of
redemption, Jones obtains complete owner-
ship of the land and Brown’s right to redeem
the land is extinguished.
Brown will also lose his equity of redemp-
tion if the mortgagee forecloses. (See
Foreclosure.)
If Jones is obliged to sell the land in order
to obtain repayment of the debt. Brown
thereby loses his equity, though, if the land
realises more than is required to satisfy
Jones, the balance must be handed to Brown.
By the Convevancing and Law of Property
Act, 1881 :—
Section 15. (1) Where a mortgagor is
entitled to redeem, he shall, by
virtue of this Act, have power to
require the mortgagee, instead of
re-conveying, and on the terms on
which he would be bound to re-
convey, to assign the mortgage debt !
and convey the mortgaged property ;
to any third person, as the mortgagor
directs ; and the mortgagee shall,
by virtue of this Act. be bound to |
assign and convey accordingly.
” (2) This Section does not apply “in the
case of a mortgagee being or having
been in possession.”
A mortgagor is entitled, as long as his right
to redeem subsists, at his own cost, to
inspect and make copies of, or extracts
from, the documents of title relating to the
mortgaged property. (Section 16.)
By Section 17 :
(1) A mortgagor seeking to redeem any
one mortgage, shall, by virtue cf this
Act, be entitled to do so, without
paying any money due under any
separate mortgage made by him, or
by any person through \-hom he
claims, on property other than that
comprised in the mortgage which he
seeks to redeem.
(2) This Section applies only if and as
far as a contrary intention is not
expressed in the mortgage deeds or
one of them.”
]
The value of an equity of redemption as
a security depends upon the value of the
j
property and the amount of mortgages
which are in existence. The margin in some
cases between the value and the mortgages
may be very considerable, but in many
instances the equity is valueless as a security.
(See MoRTG.\GE. Title Deeds.)
ESCHEAT. Where the owner of an
estate in fee simple dies without leaving a
will and without heirs, the estate reverts
or escheats to the Crown. In the case of
copyhold land it reverts to the lord of the
manor.
ESCROW. A deed handed to a person
who is not a party to it, to be held by that
person until certain conditions have been
fulfilled by the party in whose favour the
document is drawn. When the conditions
have been comphed with, the document
takes effect as a deed and is then delivered
to that party, the grantee.
ESTATE DUTY. This duty is imposed
upon the principal value, i.e. the gross price
it would sell for in the open market at the date
of death of deceased, of all property, real or
personal, which passes on the death of any
person after August 1, 1894, unless it be an
estate under ;^100 or some of the other
exemptions mentioned in the Finance Act,
I
1894.
I The executor or administrator is required
to furnish particulars of the property’ of the
deceased person.
The estate dutj’ is due to be paid upon the
delivery of the account by the representa-
tives of the deceased, or at the expiration of
six months from the death. Three per cent,
simple interest is charged upon the duty
from the date of death of deceased, until it
is paid, but after six months the rate is
increased to 4 per cent.
In the case of dut\’ upon lands it is a charge
upon the lands, and when deeds of a pro-
perty which has passed upon a death are
215
EST] DICTIONARY OF BANKING [EX
given as security a certificate of payment,
granted by the Inland Revenue authorities,
should accompany the deeds, though in
practice it rarely does.
Estates of a less value than ;(100 are
exempt from estate duty.
The estate duty payable upon real pro-
perty may be paid in eight equal yearly
instalments or sixteen half-3’early instal-
ments, with interest at 3 per cent, from the
date at which the first instalment is due.
The first instalment is due at the expiration
of twelve months from the date of the death.
The Finance (1909-10) Act, 1910, Section
54, imposes the rates of estate duty in the
following table, in the case of persons dying
on or after April 30, 1909 :
Scale of Rates of Estate Duty.
Estate
duty shall
Where the principal alue the estate be payable
at the rate
per
ESTATE TAIL. An estate tail (or fee tail)
is the opposite of fee simple. An estate
tail is where land is granted to a person and
the heirs of his body, so long as there are
such heirs, whereas a fee simple is granted
to his heirs, which need not necessarily be
the heirs of his body.
The word tail is from the French tailh’, a
cutting (taillt’r, to cut), indicating that the
land is cut or separated from any other estate
and limited to the person and the actual
descendants of the person to whom it is
conveyed. If the man has been married
more than once, the descendants of each
marriage are included ; but if the land is
granted, or Hmited, to the descendants of one
wife it is called a ” special estate tail.”
When an estate tail is converted into a fee
simple it is said to be disentailed, the entail
being barred, and the tenant may then
dispose of the estate at will.
ESTOPPEL. A law term which means
the legal stopping of a person from setting
up a claim, on account of some previous act
or representation by him inconsistent with
the claim. A bar or stop arising from a
man’s own act.
For example, where bonds (not strictly
negotiable bonds) were placed by the owner
in the hands and full control of an agent for
disposal, the principal was precluded, or
estopped, from saying that a person who took
the bonds, in good faith and for value, from
the agent, had not got a legal title to the
bonds. In that case the title to the bonds
was obtained by estoppel.
EVEN DATE. Equal date. The same
date.
EX ALL. Shares sold ” e.x all ” exclude
dividends, and all rights which the seller may
have as shareholder.
EX COUPON. Without the coupon for
interest just due. Bonds are usually quoted
as ex coupon on the evening of the date
when the coupon is due.
EX DIV. That is “without dividend,”
EX] DICTIONARY OF BAXKIXC [EXC
and means that if a purchaser has bought
shares on the Stock Exchange quoted as ex
div. the dividend just being paid belongs to
the seller. Most stocks are marked in the
London Stock Exchange official list as ex
div. on the pay day next after the day when
the dividend has been officially declared
by the company in question. Consols are
marked ex div. about four weeks before the
interest is due to be paid. (See Pay Day.)
EX DRAWING. Without any benefit,
there may be from a drawing of bonds for
pavment which is due to be made.
EX INTEREST. \Vithout interest.
EX NEW. Where new shares are being
issued to the present shareholders of a com-
pany, a shareholder sometimes sells his old
shares “ex new”; that is, he reserves to
himself the right to receive the new shares.
EX RIGHTS. Shares sold “ex rights”
are without any rights to a new issue of
shares which the old shareholders are en-
titled to, the seller reserving such rights to
himself.
EXCHANGE. A mutual arrangement by
which one piece of propertv is exchanged for
another. By the Stamp” Act, 1891, the
stamp duty is :
Exchange or Excaiibiox—Instru-
ments effecting.
In the case specified in Sec-
tion 73 see below.
In any other case . . . 10 |
(Excambion, a term used in Scotland for
the contract of an exchange of property.)
” Section 73. Where upon the exchange of
any real or heritable property for any other
real or heritable property, or upon the parti-
tion or division of any real or heritable pro-
perty, any consideration exceeding in amount
or value one hundred pounds is paid or given,
or agreed to be paid or given, for equality.
the principal or only instrument whereby the
exchange or partition or division is effected is
to be charged with the same ad valorem duty
as a conveyance on sale for the considera-
tion, and with that duty only ; and where
in any such case there are several instru-
ments for completing the title of either
party, the principal instrument is to be
ascertained, and the other instruments are
to be charged with duty in the manner herein-
before provided in the case of several instru-
ments of convevance.” (See Pariition.)
EXCHANGE “AS PER INDORSEMENT
(See Payable as per Indorsement.)
EXCHANGE BROKER. A dealer in
foreign bills. (See Bill Broker.)
EXCHANGE SLIP. A form which is
filled up and signed by the per.son requiring
notes, cash, or cheques to be exchanged by a
banker. Below will be found a specimen.
EXCHANGES. The cheques which each
banker in a town holds drawn upon the other
bankers in the same town are collected each
day by means of the ” local clearing ” or
” exchanges.”
According to the size of the town and the
quantity of cheques, there may be one, two
or even three ” exchanges ” in one day ;
usually a settlement takes place only at the
final exchange of the day.
In its simplest form, if banker X holds
cheques drawn on banker Y, he sends a
clerk, ” the exchange clerk,” with the
cheques to Y. The clerk hands the
cheques to Y and at the same time
Y’s exchange clerk hands to X’s clerk
any cheques which he may have drawn
upon X. Each clerk makes a list, usually
in an ” exchange book,” entering on the
one side all cheques handed over and on
the other side all cheques received. The
difference between the two sides is called the
” balance of exchange,” and is settled be-
tween the two banks either in cash or bv a
EXPANSIVE THEORY. The theory that
in a monetary crisis the Bank of England
should expand, and not contract, its issues.
The Bank Charter Act of 1844 placed restric- ,
tions upon the issue of notes, but in the three 1
great crises of 1847, 1857 and 1866 that Act i
had to be suspended, and, instead of the \
Bank restricting its issues, it was permitted ]
by the Government to increase them beyond
the amount of its authorised issue ; on each
occasion the application of the expansive |
theory saved the situation after the restric-
tive theory, as contained in the Act, had
proved to be ineffectual.
EXPORT SPECIE POINT. (See Specie
Points.)
EXTRACT. For stamp duty see Copy.
EXTRAORDINARY GENERAL MEET-
INGS. Meetings which are convened for the
transaction of special business. The direc-
tors of a company shall, on the requisition ,
of the holders of not less than one-tenth of
the issued share capital upon which aU calls
have been paid, forthwith proceed to con-
vene an extraordinary general meeting of
the company.
For further information see Section 66 of
the Companies (Consolidation) Act, 1908,
under the heading Meetings —Companies, i
FACE VALUE. The nominal value of
stock or shares which appears upon the face
of a certificate. The market, or seUing,
value of the security may be either higher
or lower than the face value.
FACTORS ACT, 1889 (52 & 53 Vict. c.
45). This Act deals with dispositions of
goods by factors, or mercantile agents, and
dispositions by sellers and buj-ers of goods.
(See Bill of L.ading, Delivery Order,
Dock Warrant, Warehouse Keeper’s
Warr-ant.)
The principal part of the Act is as follows :
Definitions.
” 1. For the purposes of this Act
•'(1) The expression ‘mercantile agent’
shall mean a mercantile agent having
in the customar}’ course of his
business as such agent authority
either to sell goods, or to consign
goods for the purpose of sale, or to
buy goods, or to raise money on the
security of goods :
‘ (2) A person shall be deemed to be in
possession of goods or of the docu-
ments of title to goods, where the
goods or documents are in his actual
custody or are held by any other
person subject to his control or for
him or on his behalf :
‘ (3) The expression ‘
goods ‘ shall include
wares and merchandise :
‘ (4) The expression ‘
document of title ‘
shall include any bill of lading, dock
warrant, warehou .e-keeper’s certi-
ficate, and warrant or order for the
delivery of goods, and an\’ other
document used in the ordinary
course of business as proof of the
possession or control of goods, or
authorising or purporting to autho-
rise, either by indorsement or by
delivery, the possessor of the docu-
ment to transfer or receive goods
thereby represented :
” (5) The expression ‘
pledge ‘
shall include
any contract pledging, or giving a
lien or security on, goods, whether
in consideration of an original
advance or of any further or con-
tinuing advance, or of any pecuniary
liabihty :
” (6) The expression ‘ person’ shall include
any body of persons, corporate or
unincorporate.
Disposition by Mercantile Agents.
Powers of Mercantile Agent with Respect to
Disposition o’f Goods.
“2. (1) Where a mercantile agent is,
with the consent of the owner, in
possession of goods or of the docu-
ments of title to goods, any sale,
pledge, or other disposition of the
goods, made by him when acting in
the ordinary course of business of
a mercantile agent, shall, subject to
the provisions of this Act, be as
DICTIONARY OF BANKING [FAC
valid as if he were expressly author-
ised by the owner of the goods to
make the same ; provided that the
person taking under the disposition
acts in good faith, and has not at
the time of the disposition notice
that the person making the disposi-
tion has not authority to make the
same.
” (2) Where a mercantile agent has, with
the consent of the owner, been in
possession of goods or of the docu-
ments of title to goods, any sale,
pledge, or other disposition, which
would have been valid if the consent
had continued, shall be vahd not-
withstanding the determination of
the consent : provided that the per-
son taking under the disposition has
not at the time thereof notice that
the consent has been determined.
” (3) Where a mercantile agent has
obtained possession of any docu-
ments of title to goods by reason of
his being or having been, with the
consent of the owner, in possession
of the goods represented thereby, or
of any other documents of title to
the goods, his possession of the first-
mentioned documents shall, for the
purposes of this Act, be deemed to
be with the consent of the owner.
” (4) For the purposes of this Act the
consent of the owner shall be pre-
sumed in the absence of evidence to
the contrary. •
Effect of Pledges of Documents of Title.
‘ 3. A pledge of the documents of title to
goods shall be deemed to be a pledge of the
goods.
Pledge for Antecedent Debt.
“A. Where a mercantile agent pledges
goods as security for a debt or liability due
from the pledgor to the pledgee before the
time of the pledge, the pledgee shall acquire
no further right to the goods than could have
been enforced by the pledgor at the time of I
the pledge.
Rights acquired by Exchange of Goods or
Documents.
“5. The consideration necessary for the |
validity of a sale, pledge, or other disposition,
of goods, in pursuance of this Act, may be
either a payment in cash, or the delivery or
transfer of other goods, or of a document of
title to goods, or of a negotiable security, or
any other valuable consideration ; but
where goods are pledged by a mercantile
agent in consideration of the delivery or
transfer of other goods, or of a document of
title to goods, or of a negotiable security, the
pledgee shall acquire no right or interest in
the goods so pledged in excess of the value
of the goods, documents, or .security when
so dehvered or transferred in exchange.
Agreements through Clerks, etc.
“6. For the purposes of this Act an agree-
ment made with a mercantile agent through
a clerk or other person authorised in the
ordinary course of business to make con-
tracts of sale or pledge on his behalf shall be
deemed to be an agreement with the agent.
Provisions as to Consignors and Consignees.
” 7. (1) Where the owner of goods has
given possession of the goods to
another person for the purpose of
consignment or sale, or has shipped
the goods in the name of another
person, and the consignee of the
goods has not had notice that such
person is not the owner of the goods,
the consignee shall, in respect of
advances made to or for the use of
such person, have the same lien on
the goods as if such person were the
owner of the goods, and may transfer
!
any such liuii 1.i nnothrr |irrMin.
“(2) Nothing in (lii^ -r. iiMii ,1,,, II limit or
i affect the -ali. Ill \ (il .iii\’ >. lie, I’lcdge,
or disposition, iiy a mercantile agent.
Dispositions by Sellers .\xd Buyers of
Goods.
Disposition by Seller Remaining in Possession.
“8. Where a person, having sold goods,
continues, or is in possession of the goods or
of the documents of title to the goods, the
delivery or transfer by that person, or by a
mercantile agent acting for him, of the goods
or documents of title under an}- sale, pledge,
or other disposition thereof, or under any
agreement for sale, pledge, or other dis-
position thereof, to any person receiving the
same in good faith and without notice of the
previous sale, shall have the same effect as
if the person making the delivery or transfer
were expressly authorised b}- the owner of
the goods to make the same.
Disposition by Buyer Obtaining Possession.
” 9. Where a person, having bought or
FACJ DICTIOXARY OF BANKING [FAL
agreed to buy goods, obtains with the con-
sent of the seller possession of the goods or
the documents of title to the goods, the
delivery or transfer, by that person or by a
mercantile agent acting for him, of the goods
or documents of title, under any sale, pledge,
or other disposition thereof, or under any
agreement for sale, pledge, or other dis-
position thereof, to any person receiving the
same in good faith and without notice of any
lien or other right of the original seller in
respect of the goods, shall ha\e the same
effect as if the person making the dehvery
or transfer were a mercantile agent in posses-
sion of the goods or documents of title with
the consent of the owner.
Effect of Transfer of Documents on Vendor’s
Lien or Right of Stoppage in transitu.
‘ 10. Where a document of title to goods
has been lawfully transferred to a person as
a buyer or owner of the goods, and that
person transfers the document to a person
who takes the document in good faith and
for -aluable consideration, the last-men-
tioned transfer shall have the same effect
for defeating any vendor’s lien or right of
stoppage in transitu as the transfer of a bill
of lading has for defeating the right of
stoppage in transitu.
Supplemental.
Mode of Transferring Documents.
- For the purposes of this Act, the
transfer of a document may be by indorse-
ment, or, where the document is by custom
or by its express terms transferable by
delivery, or makes the goods dehverable to
the bearer, then by dehvery.
Saving for Rights of true Owner.
“12. (1) Nothing in this Act shall autho-
rise an agent to exceed or depart
from his authority as between him-
self and his principal, or exempt
him from any liabilitj’, civil or
criminal, for so doing.
” (2) Nothing in this Act shall prevent the
owner of goods from recovering the
goods from an agent or his trustee
in bankruptcy at any time before
the sale or pledge thereof, or shall
prevent the owner of goods pledged
by an agent from having the right
to redeem the goods at any time
before the sale thereof, on satisfying
the claim for which the goods were
pledged, and paying to the agent, if
by him required, any money in
respect of which the agent would by
law be entitled to retain the goods
or the documents of title thereto, or
anj’ of them, by way of lien as
against the owner, or from recovering
from any person with whom the
goods have been pledged any balance
of money remaining in his hands as
the produce of the sale of the goods
after deducting the amount of his
lien.
” (3) Nothing in this Act shall prevent the
owner of goods sold by an agent
from recovering from the buyer the
price agreed to be paid for the same,
or any part of that price, subject to
any right of set-off on the part of
the buyer against the agent.
Saving for Common Law Powers of Agent.
” 13. The provisions of this Act shall be
construed in amplification and not in deroga-
tion of the powers exercisable by an agent
independently of this Act.
Cominenceiuent.
‘
- This Act shall commence and come
into operation on the first day of January
one thousand eight hundred and ninety.
Extent of Act.
” 16. This Act shall not extend to Scot-
Short Title.
” 17. This Act mav be cited as the
Factors Act, 1889.”
It should be noted that Section 25 of the
Sale of Goods Act, 1893, is practically the
same as Sections 9 and 10 of the Factors
Act.
FACTORY. In Scotland, Letters of
Factory empower one person to act for
another.
In the Stamp Act, 1891, the reference to
the stamp duty is :
F.\CTORY, in the nature of a letter or power
of attorney in Scotland.
(See Power of Attorney.)
FACULTY. An order or licence granted
by an ecclesiastical authority. For example,
a facult- is required before an alteration of
any importance can be effected in the
structure of a church.
CIRCULAR NOTES. Notes issued for the
special use of travellers, and which can be
cashed at any of the issuer’s correspondents,
a list of wliich accompanies the Letter of
,20
CIR] DICTIONARY OF BANKING
Indication. The Letter of Indication gives
the numbers of the notes, the name of the
person to whom they have been issued, and
a specimen of his signature. The Letter of
Indication should be retained by the holder
until all the notes have been cashed, when
it is to be surrendered to the banker cashing
the last note. For security, the Letter of
Indication and the notes should be car/ied
apart. Circular notes may be for amounts
of, say, £’5, ;^10, £20, or £5Q, each denomina-
tion being usually printed in distinctive
colours.
The following is a specimen of a circular
note :
London 19 .
Xo.
Circular Note for Ten Pounds. £\i).
Gentlemen, —
This note will be presented to -ou by
whose signature you will find in
our Letter of Indication No. to be pro-
duced herewith. We request you to pay to
order the value of Ten Pounds at
the current rate of exchange against proper
indorsement.
Your obedient servants.
Messieurs the Bankers
mentioned in our Letter of Indication.
On the back of the note is printed :
/lO. At sight pay to the order of
Ten Pounds value received at this
day of 19 .
(Sign here.)
When circular notes are presented for
payment the notes and Letter of Indication
must be carefully scrutinised to see that
everything is in order. The indorsement
on the notes of the person requiring the
money should, as a matter of precaution, be
written in the presence of the banker, and
compared with the specimen signature on
the Letter of Indication.
A circular note is exempt from stamp
duty (see under Bills of Exchange,
Exemption 4), but the form on the back
of the note, being the same as a foreign
bill, requires a stamp of one penny if on
demand or at sight or not exceeding three
days after date or sight ; if otherwise, the
usual ad valorem foreign bill stamp is
required. (See Letter of Indication.)
CIRCULATING CAPITAL. Circulating
capital fulfils the whole of its office in the
production in which it is engaged, by a
single use. John Stuart Mill says : ” The
term, which is not very appropriate, is
derived from the circumstance, that this
portion of capital requires to be constantly
renewed by the sale of the finished product,
and when renewed is perpetually parted with
in bu3’ing materials and paj-ing wages ; so
that it does its work, not by being kept, but
by changing hands.” Fixed capital, on
the contrary, does its work by being kept.
(See C.\PIT.\L.)
CIRCULATING MEDIUM. The medium
or means by which pui’chases and sales are
effected. The term is applied to gold, silver,
and copper coins, also to bank notes, cheques,
bills, and other paper instruments, which
act as substitutes for coins. The various
articles, such as shells, salt, skins, etc.,
used in former ages, and even at present in
certain countries, are also included under
the term circulating medium. (See Money.)
CIRCULATION. When money or notes
pass from hand to hand, they are said to
circulate, or to be in circulation, but the word
is sometimes used, or rather misused, to
mean the money itself.
The word ” circulation ” is very commonly
used by bankers instead of the words ” notes
in circulation.” Where a banker has, say,
;^5,000 of his own notes in circulation, it
represents the notes which are actually in
the hands of the public and does not include
anv notes which remain in his till.
FEE. The sum of money which is to be
paid for a service rendered.
The Anglo-Saxon word feoh (which is
practically our word fee) had the meaning
of money and cattle. In certain of the early
stages of society, cattle performed the
functions of money, hence the use of one
word to express both cattle and money.
FEE FARM RENT. Where a person
conveys land which he holds in fee simple
(that is, he is the absolute owner) to another
person in fee simple subject to the payment
of a perpetual yearly rent to the vendor and
his heirs, the rent is called a fee farm rent.
FEE SIMPLE. Where a person is the
absolute owner of an estate he is said to hold
it in ” fee simple,” and he can practically
do with it what he hkes. If he dies intestate
it goes to his heirs. A conveyance of a
freehold to a purchaser in fee simple contains
such words as ” To hold unto and to the use
of the purchaser in fee simple,” or, what has
the same effect, ” to the use of the purchaser
his heirs and assigns for ever.” Legally
all land is held directly or indirectly from
the King, but practica’ly that does not affect
the absolute ownership in a fee simple.
The greatest interest which can be had in
land is the fee simple, other interests, such
as a Hfe interest, or a lease, being estates less
than the fee simple. The holder of a fee
simple can create other estates out of it, but
so long as he does not dispose of the fee
simple it remains vested in him. In the
case of a lease, no matter for how long a
period, the fee simple is with the person who
grants the lease, though the person who
holds the lease or the assignment thereof
has the legal estate in the land. At the
expiration of a lease the land reverts to the
grantor, or person entitled to the fee simple.
In copvhold land the fee simple remains
with the lord of the manor.
FEE TAIL. An estate which is granted
to a person and the heirs of his body is an
estate tail or fee tail, usually called an
entailed estate. It is the opposite to a fee
simple (_q.v.). A fee simple is held to his
heirs, but a fee tail is hmited to the heirs
of his body. (See Est.\te T.\il.)
FEES PAYABLE TO REGISTRAR OF
COMPANIES. The provisions of the Com-
panies (Consolidation) Act, 1908, Section
244, with respect to the fees to be paid to
the registrar of companies are as follow :
” (I) There shall be paid to the registrar
in respect of the several matters
mentioned in Table B. in the First
Schedule to this Act the several fees
therein specified, or such smaller
fees ,is till l!oard of Trade may
tVuin time to time direct.
” (2) Ail fees paid to the registrar in
pursuance of this Act shall be paid
into the Exchequer.”
Table B.
Table of Fees to be paid to the Registrar
of Companies.
I. —By a company having a share capital.
/ s. d.
For registration of a company
whose nominal share capital
does not exceed ;£2,000 ..200For registration of a company
whose nominal share capital
exceeds ^2,000, the following
fees, regulated according to the
amount of nominal share capital
(that is to say) ; . £ s. d.
For every £1 ,000 of
nominal share
capital, or part
of /1, 000, up to
;^5,600 … I
For every ;^I, 000 of
nominal share
capital, or part of
/:i,000, after the
first ;^5,000 up to
;£100,000 . .050For every ;(1, 000 of
nominal share
capital, or part of
i;i,000, after the
first ;^100,000 .010For registration of any increase of
share capital made after the
first registration of the com-
pany, the same fees per £1,000,
or part of a /1, 000, as would
have been payable if the in-
creased share capital had formed
part of the original share capital
at the time of registration :
Provided that no company shall be
liable to pay in respect of
FEE] DICTIONARY OF BANKING
i s. d.
nominal share capital, on regis-
tration or afterwards, any
greater amount of fees than ;^50,
taking into account in the case
of fees payable on an increase
of share capital after registra-
tion the fees paid on registration.
For registration of any existing
company, except such com-
panies as are by this Act ex-
empted from payment of fees in
respect of registration under this
Act, the same fee as is charged
for registering a new company.
For registering any document by
this Act required or authorised
to be registered, other than the
memorandum or the abstract
required to be filed with the
registrar by a receiver or man-
ager or the statement required
to be sent to the registrar by
the liquidator in a winding up in
England 5
For making a record of any fact by
this Act required or authorised
to be recorded by the registrar .050
As to the duty imposed by the Stamp
Act, 1891, see Sh.\re C.\pital.
II. —B- a company not having a share
capital.
/ s. d.
For registration of a company
whose number of members, as
stated in the articles, does not
exceed 20 2
For registration of a company
whose number of members, as
stated in the articles, exceeds 20,
but does not exceed 100 . . 5
For registration of a company
whose number of members, as
stated in the articles, exceeds
100, but is not stated to be un-
hmited, the above fee of £5, with
an additional 5s. for every 50
members or less number than 50
members after the first 100.
For registration of a company in
which the number of members
is stated in the articles to be
unlimited 20
For registration of any increase on
the number of members made
after the registration of the
company in respect of every 50
members, or less than 50 mem-
bers, of that increase . . .050Provided that no company shall be
liable to pay on the whole a
greater fee than £20, in respect
of its number of members,
taking into account the fee paid
on the first registration of the
company.
For registration of any existing
company, except such com-
panies as are by this Act
exempted from payment of fees
in respect of registration under
this Act, the same fee as is
charged for registering a new
company.
For registering any document by
this Act required or authorised
to be registered, other than the
memorandum or the abstract
required to be filed with the
registrar by a receiver or man-
j
ager or the statement required
to be sent to the registrar by the
liquidator in a winding up in
England 0-5
For making a record of any fact by
this Act required or authorised
to be recorded by the registrar .050
(See CoMPAXiES.)
FEOFFMENT. (Pronounced, fef’-ment.)
An ancient method of conveyance of pro-
perty. Feoffment was accompanied by
actually handing over the possession of the
land, as by the delivery of a piece of turf,
or by the grantor vacating the land and the
grantee taking possession. This delivery of
possession was called ” hvery of seisin.”
The person delivering it was called the
feoffor and the person receiving it the
j
feoffee.
1 FEU CONTRACT. In Scotland, a con-
tract between a superior and his vassal
respecting the gix’ing of land in feu ; feu
being a tenure where the vassal holds lands
from the superior and, instead of performing
militar_v service, makes an annual return in
grain or money.
i In the Stamp Act, 1891, the reference to
the stamp duty is :
Feu Contract in Scotland. See Convey-
ance ON Sale.
PL FA. A contraction of fieri facias
(q.v.).
FICTITIOUS BILL. .\ name sometimes
given to an acconiniodatinu liill (i/.i’.).
FIC] DICTIONARY OF BANKING [FIR
FICTITIOUS PAYEE. Where the payee :
is a fictitious or non-existing person, a “bill
or cheque may be treated as payable to i
bearer. In Bank of England v. Vagliano I
(1891, A.C. 107), the meaning of a fictitious
person was enlarged to include a real person
who never had nor was intended to have [
any right to the bills. Lord Herschell said [
in the course of his judgment : ” I have
arrived at the conclusion that whenever the
name inserted as that of the payee is so
inserted by way of pretence merely, without
any intention that payment shall only be
made in conformity therewith, the payee is
a fictitious person within the meaning of the
statute, whether the name be that of an
existing person or of one who has no exist-
ence.”
A cheque payable to “wages ” or “estate,”
or some similar word is payable to an
impersonal payee and should be treated as
being payable to the order of the drawer
and requiring his indorsement. An im-
personal payee is not the same as a fictitious
person. (See P.W’ee.)
FIDELITY GUARANTEE. A guarantee
by a person or a society to make good, up
to a specified amount, any loss caused by the
default of the individual guaranteed.
The Bankers’ Guarantee and Trust Fund
is for the nmtual guarantee of bank officials
employed in the United Kingdom.
The subscription for membership is ^1 per
cent, on the amount of the guarantee.
Paj-ment may be made either in one sum or
by five equal annual instalments, but when
payment is thus deferred. Is. per cent, on
the amount of guarantee must be added to
each instalment, until the whole is paid.
If a member leaves the service of his em-
plo-ers, he will not be called upon to pa)’
the instalments then outstanding.
An entrance fee is also charged at the
rate of 4s. per cent, on the amount of the
guarantee, whether given in one or more
pohcies.
Guarantees exceeding ;£3,000, and not
abo-e ;/5,000, are issued, as regards the
excess of £3,QQQ, at special rates.
Pohcies are issued for bank messengers
and porters, at an annual premium, without
membership.
AMien a policy of insurance is required, a
form of proposal must be filled up, various
questions being answered by the employer
and others by the applicant. The applicant
is required to submit the names of three or
four referees who must be householders.
and have known the applicant for some
length of time, one (if possible) resident in
London, and one to be the last employer (or
late schoolmaster, if first situation).
FIDUCIARY CAPACITY. (Latin, fidiicia,
confidence.) A person who holds an>i;hing
in trust for another is said to hold it in a
fiduciary capacity.
When a banker has notice that certain
moneys deposited with him are of a fiduciary
nature, he must not, knowingly, be a party
to an\’ wrongful use of such moneys, other-
wise he will be responsible to the person
entitled to the moneys. A banker cannot
be held liable when he is unaware that they
are trust monevs.
FIDUCIARY ‘issue. A term applied to
the note issue of the Bank of England,
which is authorised against the Government
debt and securities, as distinguished from
the note issue against gold.
FIERI FACIAS. A writ of fieri facias,
often abbreviated as fi. fa., takes its name
from the words appearing in the document
” quod fieri facias de bonis.” etc. The writ
is issued on behalf of a creditor who has
obtained judgment for a debt, ordering the
sheriff to levy the amount on the goods of
the debtor. Bank-notes, money, cheques,
and bills are included amongst the things
which the sheriff ma^^ seize.
FILING PETITION. (See Receiving
Order.)
FINE PAPER. Bills which are drawn
upon banks or first-class firms.
FIRE INSURANCE. In order to prevent
a security over buildings disappearing in
smoke a banker should be careful to see that
the property is insured, and that the
premiums are duly paid. The policy should,
strictly, be transferred into the banker’s
name. The premiums should be paid before
the expiration of the days of grace, that
is, usually fifteen days from the date when
the amount is due to be paid.
An insurer cannot recover more than the
actual loss sustained from a fire, within
the amount of the policy. If the same
property is insured in several ofi&ces, each
company will only pay its proportion of any
loss.
The stamp duty on a policy is one penny.
See the provisions of the Stamp Act, 1891,
under Policy of Insur.\xce. (See Aver.\ge
Cl.^use.)
FIRM. Persons who have entered into
partnership with one another are, collec-
tively, called a firm, and the name under
227
FIRJ DICTIONARY OF BANKING [FLO
which their business is carried on is called the
firm-name.
In Scotland a firm is a legal person
distinct from the partners. (See Section 4 of
the Partnership Act, 1890, under Partner-
ships.)
Unless registered under the Companies’
Acts, a firm must not consist of more than
twenty partners, and in the case of a banking
firm of more than ten partners.
FIRM OFFER. A definite offer, as where
a person states that he is prepared to pur-
chase a certain property at a specified price.
FIRST AND IN NEED WITH. Where a
foreign bill is drawn in a set, say in two
parts, one part may be sent at once to the
drawee for acceptance, and the other part
may be negotiated and bear a reference upon
the face of it that the accepted part is in the
possession of certain agents, as ” First and
in need with the British Bank, Ltd.,
London.”
FIRST-CLASS PAPER. Treasury Bills
and bills which bear the names of banks and
financial houses of the very highest standing.
They are so called to distinguish them from
second and third-class bills, where thesecurity
is not so good.
FIRST OF EXCHANGE. (See Bill in a
Set.)
FIXED CAPITAL. Capital which is sunk
in the purchase of land, or in buildings, the
construction of railways, cutting of canals,
etc., and which produces its effect by being
kept, and not parted with, as in the case
of circulating capital. “Capital,” says
John Stuart Mill, ” which exists in any of
these durable shapes and the return to which
is spread over a period of corresponding
duration, is called Fixed Capital.” Some
kinds of fixed capital require to be occa-
sionally or periodically repaired or renewed,
but these improvements ” by the very fact
of their deserving that title, produce an
increase of return, which, after defraying all
expenditure necessary for keeping them up,
still leaves a surplus. This surplus forms the
return to the capital sunk in the first in-
stance, and that return does not, as in the
case of machinery, terminate by the wearing
out of the machine, but continues for ever.”
(See Capital.)
FIXED CHARGE. Debentures and de-
benture stock may be secured on the pro-
perty of the company by a ” fixed ” charge,
or by a ” floating ” charge. In a fixed
charge the property is, usually, by a trust
deed, vested in trustees for the debenture
holders or debenture stockholders, so that
no other person may obtain a prior charge.
(See Dkb;:.\tu:^k, Floating Charge.)
FIXED DEPOSIT. A deposit receipt
which is repayable at a certain fixed date.
The rate of interest allowed is usually a
better one than on an ordinary deposit
repayable on demand. (See Deposit Re-
ceipt.)
FIXTURES. The deposit of title deeds, as
well as a legal mortgage, carries with it the
right of the mortgagee to any fixtures there
may be upon the land.
If the mortgage deed includes trade
machinery, by the Bills of Sale Act, 1S7S,
Section 5 ;
” From and after the commencement of this
Act trade machinery shall, for the purposes
of this Act, be deemed to be personal chat-
tels, and any mode of disposition of trade
machinery by the owner thereof which
would be a bill of sale as to any other per-
sonal chattels shall be deemed to be a bill of
sa’e within the meaning of this Act.”
In that Act ” trade machinery ” means
the machinery used in, or attached to, any
factory or workshop, exclusive of fi.xed
motive powers such as water wheels, steam
engines, etc., exclusive of the fixed power
machinery such as shafts, wheels, etc., and
exclusive of the pipes for steam, gas and
water. With regard to ” trade machinery “
generally, reference should be made to the
case of Batchelor v. Yates (1888, 38 Ch. D.
112).
A mortgagor cannot remove fixtures from
a property as against a mortgagee, even
though they are of such a nature as to be
removable as between landlord and tenant.
FLOATERS. A term used to signify the
first-class bearer securities, e.g. Exchequer
Bonds, Treasury Bills, etc., which bill brokers
deposit with banks against money lent to
them at call. When the money is called in
by one bank the broker must borrow from
another, and thus his securities move or
” float ” about from one bank to another.
FLOATING CAPITAL. (See Capital.)
FLOATING CHARGE. Debentures or
debenture stock, in addition to being secured
by a ” fixed ” charge upon the company’s
property, may also be secured by a ” float-
ing ” charge, that is a charge upon the stock,
book debts, etc., of the company, which
permits the company to make use of those
assets in any way in connection with its
ordinary business. A charge of that descrip-
tion ” floats ” until such time as default is
FLO] DICTIONARY OF BANKING [FOR
made in payment of interest, or the company
goes into liquidation. When such an event
occurs, the charge becomes ” fixed,” and the |
assets at that date become a fixed security
for the debentures and may be reahsed for
the benefit of the debenture holders.
If the debentures create a ” floating ” i
charge upon the land of the company, as
well as upon the stock, book debts, and
uncalled capital, the company is not pre-
cluded by that floating charge from selling
or mortgaging the land. Some ” floating “
charges, however, contain a clause to the
effect that the company will not mortgage
the property so as to create an equal or prior
charge, but e-en in that case if anyone
grants the company a loan against the title ;
deeds, without anv notice of the charge, he
ma- obtain priority.
Particulars of every floating charge on the
undertaking and property of a company
must be dehvered to the registrar of com-
panies for registration. (See Registration
OF :Mortg.\ges axd Charges.) A debenture
containing merely a floating charge does not
require to be entered on the company’s
register of mortgages.
Where a company is being wound up, a
floating charge created within three months
of the commencement of the winding up
may be invalid (see Section 212 of the Com- i
panies (Consolidation) Act, 1908, under j
Winding up). (See Companies.)
FLOATING DEBT. The floating debt I
of the countrs^ consists of Treasury Bills ,
(q.v.) and Exchequer Bonds (q.v.). (See \
Funded Debt.)
FLOATING MONEY. Temporary surplus
funds in the hands of bankers, for which
no profitable employment can be found
owing to the money market being alrcadv
fully supphed. This floating money finds
its way to the bankers’ accounts at the Bank
of England, and goes to increase the item
” Other Deposits ” in the Bank Return, until !
a suitable outlet offers. A glutted condition I
of this kind arises on the periodical payment
of large Government and other dividends and
during times when there is httle demand for
money. A low market rate is the natural
result. I
FLOATING POLICY. (See Marine |
Insurance Policy.) !
FLORIN. A two-shiUing piece. (From I
Latin flos, floris, a flower. Italian fiorino, a
florin, so called because there was the figure
of a lily upon it. It is also stated that the
coin .s named from the city of Florence
where florins were first coined.) It was
introduced into the coinage in 1849.
The standard weight of a florin is
174-54545 grains troy and its standard fine-
ness thirtv-seven-fortieths fine silver, three-
fortieths alloy. (See Coinage.)
FOR CASH. A transaction on the Stock
Exchange which is “for cash” or “for
monc- ” means that the security which has
been sold must, as soon as delivered, be paid
for in cash. (See For the Account.)
FOR THE ACCOUNT. A transacrion on
the Stock Exchange may be ” for the ac-
count,” that is for settlement on the next
” account day ” or ” setthng day.” (See
For Cash.)
FORECLOSURE. Where a mortgagor
has failed, after due notice, to make repay-
ment of the mortgage debt, the mortgagee
has the right to apply to the Court for an
order for foreclosure. Where this is done, the
Court orders an account of what is due to
the mortgagee to be submitted, and if what
is found to be due is not paid within
six months, the mortgagor’s equity of re-
demption, that is his right to redeem the
property, is foreclosed or extinguished. By
foreclosure, therefore, the mortgagor loses his
equity of redemption altogether and has no
further interest or right in the property
and the mortgagee becomes absolute owner.
Neither a legal mortgagee nor an equitable
mortgagee can foreclose without sanction of
the Court.
A legal mortgagee can, however, sell the
property or put in a receiver under the
power contained in his mortgage deed, with-
out any application to the Court.
The expression ” redeem up, foreclose
down ” applies when a mortgagee makes
application to the Court for foreclosure, as
he forecloses any subsequent mortgagees, as
well as the mortgagor, and redeems any prior
mortgagee. > i
Apphcation for foreclosure must be made
within twelve years from the last payment
of interest by the mortgagor or written
acknowledgment of the debt.
Where a mortgagee forecloses and thus
becomes absolute owner of the property, he
has no further claim upon the mortgagor.
But if a mortgagee sells the property, instead
of foreclosing, he may claim upon the mort-
gagor if the proceeds of the sale are not
sufficient to repay the mortgage debt. (See
Mortgage.)
FOREIGN BANK NOTES. They are sub-
ject to the laws of the country in which they
FOR] DICTIONARY OF BANKING [FOR
are issued. Country bankers usually send
foreign bank notes to their London office or
London agents to be sold.
CUS] DICTIONARY OF BANKING [DAT
of the lord is necessary before a valid ‘,
mortgage can be given.
For stamp duties, see Copyhold.
CUSTOMER. WTiere a banker collects a
cheque, crossed generally or specially to
himself, for a customer, the banker is pro-
tected, if he has acted in good faith and
without negligence, even if an indorsement
should prove to be forged (Section 82, Bills
of Exchange Act). The person for whom
it is collected must, however, be a customer.
It has been held that in order to make a
person a customer of a bank, within the
meaning of Section 82, fhrn- inii^t lie either
a deposit or a currnit aiciuinl or some
similar relation. (Gicut Wcstini Railway
V. London and County Banking Co., 1901,
A.C. 414.)
Money paid in by a customer to his
account is really lent to the banker, the
banker becoming, not the trustee for that
money, but the debtor of the customer. In
the event of the banker’s failure, the cus-
tomer claims upon the estate as an ordinary
creditor.
CUSTOMS AND EXCISE ACCOUNT. The
persons entitled to draw upon such account
are those who are notified to the banker by
the Commissioners of Customs and Excise.
The account is subject to the conditions
prescribed in Section 18 of the Exchequer
and Audit Departments Act (29 & 30 Vict.
c. 39). (See Public Account.)
Cheques on the account, or drafts given
by the banker to transmit money from the
account to another pubhc account, are
exempt from stamp duty. (See Schedule
to Stamp Act, 1891, under article Bill of
Exchange.)
CY PRES. As nearly as possible. When
the terms of a trust are incapable of being
carried out absolutely, the Courts have power
to order that they be carried out ” cy pres,”
as nearly as possible,
DATE. The Bills of Exchange Act, 1882,
provides :
” Section 3. (4) A bill is not invalid by
reason
” (a) That it is not dated.”
” Section 12. Where a bill expressed to
be payable at a fixed period after date is
issued undak’d, oi wlicir tin- >n (.(.’iitance of a
bill pa\,il.N- at a U\r,\ pmml ,,ltiT sight is
undattal, ,iii- lioMri- ni.i- insert therein the
true date ul ibbuc or accuptaiin’, and the
bill shall be payable accordingly.
” Provided • that (1) where tlie holder in
good faith and by mistake inserts a wrong
date, and (2) in every case where a wrong
date is inserted, if the “bill subsequently
comes into the hands of a holder in due
course the bill shall not be avoided thereby,
but shall operate and be payable as if the
date so inserted had been the true date.”
Where an undated bill has a date inserted
after acceptance, notice of the date so
inserted should be given to the acceptor,
otherwise he will not know when the bill is
due.
The above Section applies only to bills,
but with regard to cheques where the date
has been omitted it is generally considered
that a holder may insert what he takes to be
the true date.
” Section 13. (1) Where a bill or an
acceptance or any indorsement on
a bill is dated, the date shall, unless
the contrary be proved, be deemed
to be the true date of the drawing,
acceptance, or indorsement, as the
case may be.
” (2) A bill is not invahd by reason only
that it is ante-dated or post-dated,
or that it bears date on a Sunday.”
Ante-dating is placing a date prior to the
true date ; post-dating, placing a date
subsequent to the true date.
The difference between the insertion of
an omitted date and the alteration of a date
should be noted. The above section permits
any holder to insert a date, but Section 64
(see under Alter.\tions) requires all parties
to agree to an alteration.
The date is a material part of a bill and
any alteration in a date, unless with the
assent of all the parties liable on the bill,
avoids the bill except as against the party
who has made or assented to the alteration,
and subsequent indors?rs ; but where a date
has been altered and the alteration is not
apparent, a holder in due course may avail
himself of the bill as if it had not been altered.
A bill bearing a date prior to the date
upon the stamp is not invalid, as the above
Section (13) permits a bill to be ante-dated.
A bill, however, must be stamped before it
is drawn.
Where a post-dated bill is discounted,
and the acceptor dies or becomes bankrupt
before the arrival of the date of the bill, the
bill is not invalid bjr reason only that it is
post-dated.
It is not permissible to give a bill or
promissory note, undated, for say three
months, and after payment of the bill or note,
DAY] DICTIONARY OF BANKING [DAY
still undated, to issue it again for another
three months, and so on. The only date
which can be inserted in an undated bill is
the true date of issue. A fresh debt requires
a new bill or note.
Bills drawn in Russia are generally dated
according to the old style (or Julian
calendar), and thirteen days require to be
added to the date on the bill to bring the
date into accordance with the new style (or
Gregorian calendar) of this country. The
date is often given on Russian bills as, e.g.
March 5/18. the first date being that of the
old style (O.S.) and the second date that of
the new style (N.S.). The currency of such
a bill would, in this country, be calculated
from March 18. From 1800 to 1900 the
difference was twelve days ; from 1900 to
2100 the difference is thirteen days, and so
it will remain unless Russia comes into line
with other countries as to the calendar.
The dates on bills of exchange and cheques
are usually in figures, but they would be
quite valid if written in words. In France
the date on a cheque is written in words.
On transfers, powers of attorney, convey-
ances, and other important instruments, the
date should be in words. (See Ante-dated,
Bill of Exch.\nge. Post-d.^ted.)
DEBENTURE. (Latin debeo, to owe.)
Where a company requires to borrow, it
frequenth’ does so by an issue of debentures,
that is by documents under the seal of the
company acknowledging the debt. A de-
benture is usually secured by a mortgage or
charge, and represents a separate debt of a
definite round sum bearing a fixed rate of
interest. In the case of debenture stock,
the certificates are for different amounts,
representing parts of a large loan or debt.
Debentures are the instruments evidencing
a !oan to the company.
Although debentures generally give secur-
ity over the property of a company, they
may be merely an acknowledgment of a debt,
and give the holders no advantage o-er other
creditors. It is therefore important, when
debentures are offered as security, to ascer-
tain if, and in what manner, they are secured.
It is also necessary to see that the company
has power, by its memorandum and articles
of association, to issue debentures, and that
any such power has not been exceeded ; in
other words, that the amount issued is
within its borrowing powers. It should also
be noted whether the debentures are trans-
ferable only “subject to equities ” —that is,
are subject to any debt due by the trans-
feror to the company—or whether the
debentures are payable without regard to
any such debt, that is, “without regard to
any equities ” between the company and the
transferor.
Debentures and debenture stock are
usually secured by a trust deed, sometimes
called a ” covering deed,” by which the
property of the company is vested in
trustees upon trust for the debenture holders
or debenture stockholders. When the de-
bentures and debenture stock are secured
[
by a ” fixed ” charge, the holders are free
from the danger of anyone securing a prior
charge, and the trustees are given powers to
enable them to deal with the mortgaged
property in order, when necessary, to raise
money to repay the debt to the holders. If,
however, the charge is a ” floating ” one and
not ” fixed,” the company can create prior
[
charges, or sell the property or deal with it
as they desire at any time before the charge
j
becomes fixed. A debenture creating a
floating charge often, however, contains a
condition of this nature: —”The debentures
of the said series are all to rank pari passu
as a first charge on the property hereby
charged, without any preference or priority
one over another, and such charge is to be a
floating security, but so that the company
is not to be at liberty to create any mortgage
or charge on its undertaking pari passu with
or in priority to the said debentures.” If
a banker obtains a charge, and has notice
of such a condition, his charge will be
postponed to the charge crealed by the
debentures.
It is usual for a debenture to be secured
by a ” fixed ” charge upon the land of the
company and by a ” floating ” charge upon
its stock, book debts and uncalled capital.
By that means the company can continue
its business and use up and vary the assets
included under the floating charge. If the
company defaults in paymeit of the prin-
cipal and interest secured by the debentures,
or goes into liquidation, the floating charge
becomes fixed, and attaches the assets as
at that date. Although debentures ma}’ be
secured by a trust deed, a banker should
ascertain the nature of the property, as the
propert)’- may prove to be of little value.
Wliere a debenture (not being one of a
series) is give a by a company to secure its
account, the deeds of the property should
be deposited with the banker along with
the debenture, otherwise an equitable mort-
gagee, without notice of the debenture, might
obtain priority.
A debenture which is issued in the names
of the bank’s nominees, as security, should
be accompanied by a qualifying agreement,
to show the purpose for which it has been
given. (See Qu.a,lifying Agreement.)
A debenture is not a bill of sale. The
Bills of Sale (1878) Amendment Act, 1882,
Section 17, provid?s :
—” Nothing in this Act
shall apply to any debenturc3 issued by any
mortgage, loan, or other incorporated com-
pany, and secured upon the capital stock or
goods, chattels, and effects of such com-
pany.”
Debentures are issued for amounts varying
from, say, £\Q to £\0Q, and are repayable
either upon notice or at the end of a certain
number of years, say five, ten, or fifteen
years from the dale of the instrument.
They may also be perpetual or irredeemable,
in which case the holder is entitled to an
annuity or interest upon the money yearly
in perpetuity. Ab hough called irredeem-
able, they are usually redeemable upon the
company going into voluntary or compulsory
liquidation.
Where there is a series of debentures, each
of them is expressed to rank equally with the
others of the series. The interest upon the
debentures may be paid by warrant or by
coupons issued along with the debentures.
Debentures are sometimes payable to
bearer and sometimes to the registered
holder. And bv custom thev mav be treated
as negotiable instruments. When debentures
to bearer are offered as security, a mere
deposit of them may be taken (a form of
transfer not being necessary), or they may
be accompanied, as is preferable, by a
memorandum of deposit or an agreement
showing for what purpose they have been
left with the banker. In Bechuanaland
Exploration Co. v. London Trading Bank
(1898, 2 Q.B. 658), where bearer debentures
of an English company had been stolen
and pledged with the bank, it was held that
the bank was entitled to the debentures
because they were, by the general custom
of merchants, negotiable instruments and
transferable \<\ d.livcry. The niL !:’!, -I debentures payable to bearer – > ; ii n .1 again in the case
of EdHst.il. V. .b;;…’.;; i>- Co. (1902, 2 K.B.
145), when the decision in the Bechuanaland
case was followed. In the judgment of
Bigham, J. (afterwards Lord Mersey), it is
said : “It has been argued that the attri-
bute of negotiability could not be attached
to a contract except by the law merchant
and that these bonds are of such recent
creation that their negotiability under that
branch of the law cannot be justified. It is
no doubt true that negotiability can only
be attached to a contract by the law mer-
chant or by a statute ; and it is also true
that, in determining whether a usage has
become so well established as to be binding
in the courts of law, the length of time
during which the usage has existed is an
important circumstance to take into con-
sideration ; but it is to be remembered that
in these days usage is established much
more quickly than it was in days gone by ;
more depends on the number of the trans-
actions which help to create it than on the
time over which the transactions are spread ;
and it is probably no exaggeration to say
that nowadaj-s there are more business
transactions in an hour than there were in
a week a century ago. Therefore the com-
pai-atively recent origin of this class of
securities in my view creates no difficulty
DEB] DICTIONARY OF BANKING [DEB
in the way of holding that they are negoti-
able by virtue of the law merchant ; they
are dealt in as negotiable instruments in
every minute of a working day, and to the
extent of many thousands of pounds. It is
also to be remembered that the law merchant
is not fixed and stereotyped ; it has not
yet been arrested in its growth by being
moulded into a code ; it is, to use the words
of Cockburn, C. J., in Goodivin v. Robarts
(1875, L.R. 10 Ex. 337), capable of being
expanded and enlarged so as to meet the
wants and requirements of trade in the
varying circumstances of commerce, the
effect of which is that it approves and
adopts from time to time those usages of
merchants which are found necessary for
the convenience of trade ; our common
law, of which the law merchant is but a
branch, has in the hands of the judges the
same facility for adapting itself to the
changing needs of the general public ;
principles do not alter, but old rules of
applymg them change, and new rules spring
into existence. Thus it has been found
convenient to treat securities like those in
question in this action as negotiable, and
the courts of law, recognising the wisdom
of the usage, have incorporated it in what
is called the law merchant, and have made
it part of the common law of the country.
In my opinion the time has passed when
the negotiability oi ;> .inr lionds, whether
Government bonds ..r ti.i.li;i^ l).)nds, foreign
or English, can be ial!i..l in .[iicstion in our
Courts. The existence ol the usage has been
so often proved and its convenience is so
obvious, that it must be taken now to be
part of the law ; the very expression ‘ bearer
bond ‘ connotes the idea of negotiability, so
that the moment such bonds are issued to
the public they rank themselves among the
class of negotiable securities. It would be
a great misfortune if it were otherwise, for
it is well known that such bonds are treated
in all foreign markets as deliverable from
hand to hand ; the attribute not only en-
hances their value by making them easy of
transfer, but it qualifies them to serve as a
kind of international currency ; and it
would be very odd and a great injury to
our trade if these advantages were not
accorded to them in this country.”
^Vhere debentures or certificates of deben-
ture stock, payable to a registered holder,
are given as security, they should, to form
a complete security, be transferred into the
names of the bank’s nominees. When they
give a charge upon the company’s land the
transfer must be under seal. (See Transfer
OF Sh.^res.) The debentures or certificates
may also be lodged with a blank transfer
that is, a transfer in which the space for the
transferee’s name is left blank, or which is
undated. Notice of the charge should be
given to the company. When necessary,
the blank transfer is completed by the banker
and sent in to the office of the company for
registration. A blank transfer, however, is
not a satisfactory document. (See Bl.\nk
Transfer.) If the debentures are about
due for payment, they should be indorsed
by the registered owner and authority given
to the banker to write a receipt above the
signature.
Where debentures are deposited by a
company as security for a loan, and the
debentures are of a larger face value than
the amount of the loan, the holders are
entitled to dividends upon the full amount
of the debentures until the loan is repaid.
When a company, which is indebted to a
banker, issues debentures forming a specific
charge upon the property of the company,
without applying the money so raised in
reduction of the loan or overdraft, the banker
should review his position, because, in the
event of a winding up, he will, unless other-
wise secured, rank merely as an unsecured
creditor alter the debenture holders.
A private firm sometimes registers as a
limited company for the sole purpose of
obtaining powers to issue debentures as a
floating charge upon its stock, and of avoid-
ing the necessity of having to give a bill of
sale upon the stock in order to borrow
money thereon.
Every company shall, within two months
after allotment, and within two months after
registration of the transfer of any debentures
or debenture stock complete, and have ready
for dehvery, the debentures, and certificates
of debenture stock, unless the conditions of
issue otherwise provide. (See Section 92 of
the Companies (Consolidation) Act, 1908,
under heading Certificate.)
Every mortgage or charge created after
July 1, 1908, by a company, registered in
England or Ireland, must be delivered to
the registrar of companies for registration
within twenty-one days after the date of its
creation. Tlie holding of debentures en-
titUng the holder to a charge on land shall
not be deemed to be an interest in land.
WTiere a series of debentures containing, or
giving by reference to any other instrument.
179
DEB] DICTIONARY OF BANKING [DEB
any charge to the benefit of the debenture
holders, is created by a company, the
required particulars must be delivered to
the registrar within twenty-one days after
the execution of the deed containing the
charge, together with the deed containing
the charge, or if there is no such deed, one
of the debentures. The registrar shall give
a certificate of the registration of any mort-
gage or charge, and the company shall cause
a copy to be indorsed on every debenture or
certificate of debenture stock which is issued
by the company and the payment of which
is secured by the mortgage or charge so
registered.
In the ” Handbook on the Formation,
etc., of Joint Stock Companies,” by F. Gore
Brown, K.C., and William Jordan, the fol-
lowing information regarding the registra-
tion of debentures is supplied (p. 202, 30th
edition) :
” Before the 1st July, 1908, the
more usual practice was to register the
individual instruments as separate charges
under sub-section 1 of Section 14 of the
Act of 1900, instead of the series under sub-
section 4. In cases w-here debentures of a
series were registered separately and a
further issue of the same series is now made,
the series should be registered within twenty-
one days after the issue of the first of the
further debentures. The Registrar considers
that registration of the series is also neces-
sary when debentures registered separately
are renewed by indorsement, even though
they may not have matured.”
In addition to being registered with the
registrar of companies, all debentures speci-
fically affecting property of the company
must be entered in a register kept by the
company, but a debenture containing merely
a floating charge does not require to be
entered in this register, though it does
require registration with the registrar of
companies.
For full particulars regarding registration,
see the sections of the Companies (Con-
soUdation) Act, 1908, under heading
Registration of Mortg.\ges and Charges.
Any creditor or member of a company
may inspect the register of mortgages which
is kept by the company, without payment
of a fee, and any other person may inspect
it on payment of one .shilling. Any person
may inspect the documents kept by the
registrar of companies on payment of one
shilling. {See Registrar of Companies.)
A copy of any trust deed for securing an
issue of debentures shall be forwarded to
any debenture holder on pa^Tuent, in the
case of a printed deed, of one shilhng, or less,
or, where the deed is not printed, on pay-
ment of sixpence for every 100 words
required to be copied (Section 102, s.s. 2,
Companies (Consolidation) Act, 1908).
Where a company has redeemed any
debentures, the company, unless the articles
or conditions of issue expressly otherwise
provide, or unless the debentures have been
redeemed in pursuance of any obligation
so to do (not being an obligation enforceable
only by the person to whom the redeemed
debentures were issued or his assigns), shall
have power to keep the debentures alive for
the purposes of re-issue (Section 104, s.s.
I ) . Sub-section 3 of the same Section says :
” Where a company has either before
or after the passing of this Act
deposited any of its debentures to
secure advances from time to time
on current account or othenvise, the
debentures shall not be deemed to
have been redeemed by reason only
of the account of the company
having ceased to be in debit whilst the
debentures remained so deposited.”
The re-issue of a debenture shall be treated
as a new debenture for the purposes of stamp
duty.
In the event of default in the payment of
the principal and interest secured by a
mortgage debenture :
The debenture holders may sue the
company for repayment of principal
and interest ; or.
Apply to the Court for an Order for sale
of the property ; or.
Apply for a receiver to be appointed to
wind up the company ; or.
If there is a trust deed giving the necessary
power, the trustees maj^ sell the property,
or enter into possession ; or.
If all the debenture holders agree, they
may apply to the Court for an order of
foreclosure. (Sec Foreclosure.^
The exact terms of the debenture or of
any trust deed must be strictly observed.
As to tlio «!t,nnp duty on a debenture for
securing tile jlin hh m or repayment of money,
or the ir,iii-l’ I ^r n transfer of stock, see
MoRTGAGi:, I K ., \M> -Marketable Security.
When the debcntiucs are stamped, the
trust deed, if any, takes only a ten-shilling
stamp. (See Companies, Registration of
Mortgages and Charges.)
DEBENTURE HOLDER. The person
who holds a debenture. He may be either
DEBJ DICTIONARY OF BANKINC; [DEC
a registered holder, or a holder of a debenture
payable to bearer. In the former case a
document of transfer is necessary to pass the
ownership to another person, but in the
latter case the debenture is transferable by
simple dehvery.
A debenture holder is a creditor of the
company, as the debenture represents a loan
to the company, and the interest thereon
must be paid before any dividend is received
by the shareholders. (See Debenture.)
“
DEBENTURE STOCK. Debenture stock
is essentially the same as debentures, and
both are usually secured by a charge or
mortgage. Debentures, however, are for
definite round sums, as separate debts,
whereas certificates of debenture stock are for
different amounts, as parts of one large debt.
The certificates do not require a stamp,
but any deed creating a security for the stock
is subject to the same duty as a mortgage
fe..’.).
When a certificate of debenture stock is
gi-en as security, a transfer from the regis-
tered holder to the bank’s nominees, accom-
panied by a qualifying agreement, should
be taken, and, to make the security fully
satisfactory, the transfer should be registered. |
(See Bl.\nk Tr.\nsfer, Debenture, Loan ]
Capit.^l, Sh.are Capital. Transfer of ,
Shares.)
DEBIT. (Latin dehitum, what is owed.)
When a banker pa3-s a cheque drawn b}’ a
customer, the amount is placed to the debit
of the customer’s account. When the
amounts debited are greater than the
amounts paid to credit, the resulting balance
is a debit one, or a ” debtor balance ” as it !
is called (shown, thus, Dr. £\0Q) and repre-
sents the sum due by the customer to the
banker, the banker being the creditor and the
customer the debtor.
DEBTS, ASSIGNMENT OF. A customer
may assign to a banker any money which is
due, or will be due, to him. This may be
effected by a letter signed by the customer, !
addressed to the person who owes him j
money, requesting that the debt be paid to
the banker. The letter will be retained
b}- the banker, who should give written
notice at once to the debtor of the assign-
ment, and ascertain from him if the debt is
as stated, and if it is free from any prior
charge. It is desirable to obtain an acknow-
ledgment from the debtor. The banker
should be able to prove that he sent the
notice in case the debtor does not acknow-
ledge it.
Such an instrument, being an absolute
assignmert of a debt, is considered (Alpe’s
Stamp Duties) to be Uable to stamp duty
” of ten shilhngs as a ‘ conveyance not
hereinbefore charged,’ or ad valorem convey-
ance duty if on sale or in consideration pro
tanto of any debt under Section 57.” (See
that section under Conveyance.)
By Section 25, sub-section 6, of the
Supreme Court of Judicature Act, 1873, it
is enacted as follows :
” Any absolute assignment, by writing
under the hand of the assignor (not purport-
ing to be by way of charge only), of any debt
or other legal chose in action, of which
express no ace in writing shall have been
given to the debtor, trustee, or other person
from whom the assignor v\ ould have been
entitled to receive or claim such debt or chose
in action, shall be, and be deemed to have
been, effectual in law (subject to all equities
which would have been entitled to priority
over the right of the assignee if this Act had
not passed), to pass and transfer the legal
right to such debt or chose in action from
the date of such notice, and all legal and
other remedies for the same, and the power
to give a good discharge for the same, with-
out the concurrence of the assignor :
Provided always, that if the debtor, trus+ee,
or other person Uable in respect of such debt
or chose in action shall have had notice that
such assignment is disputed by the assignor
or am-one claiming under him, or of any-
other opposing or conflicting claims to such
debt or chose in action, he shall be entitled,
if he think fit, to call upon the several persons
making claim thereto to interplead concern-
ing the same, or he may, if he think fit, pay
the same into the High Court of Justice
under and in conformity with the provisions
of the Acts for the rehef of trustees.”
If the debtor has a counter claim against
the assignor, the assignee will be entitled
only +0 the balance of the debt after allowing
for the counter claim.
A cheque is not an assignment of money
in favour of the payee, as the banker is liable
only to the drawer ; but if a customer
formally assigns his balance to a third party
and the banker receives notice thereof, his
habihtv is then to the assignee.
DECLARATION OF TRUST. The term
“bill of sale” includes a “declaration of
trust without transfer.” Where a debtor
gave to a banker a letter of hypothecation of
goods as security, agreeing to hold the goods
in trust for the bank and pa)’ over the pro-
ceeds when received, it was held {Reg. v.
Townshend. 1884, 15 Cox, 466) to be a
” declaration of trust without transfer ” and
therefore a bill of sale. (See Bill of S.ale,
Trust Receipt.)
DECODE. To decode a telegram is to
translate the code words into the words or
figures which they represent. It has only
recently come into use.
DEED. A deed is a document in writing,
or printing, on paper or parchment, which
is signed, sealed and delivered by the parties
thereto.
All deeds are now signed, though at one
time it was sufficient if they were merely
sealed and delivered. In the olden times
persons would often be unable to write,
and the sealing of the document with their
own private seal would be of the first im-
portance, but now that nearly all persons can
write, the signature to a deed is the principal
matter, the seal being merely a formal affair.
The deed must be sealed, but it is no longer
necessary that it should be the seal of the
person who is sealing. It may be the seal
of anyone, or a drop of wax, or simply a red
DEE] DICTIONARY OF BANKING [DEE
wafer. The seals may be put on the deeds
before the parties sign it, and by touching
it with the finger at the time of signing, it
has the effect of seahng. There must be a
separate seal for each person. If a deed is
read over to a person who cannot read, the
attestation clause should be ” signed, sealed
and delivered by the said John Brown, the
document having first been read over to him
when he appeared fully to understand the
same.”
In addition to being signed and sealed, a
deed must be delivered, and this is usually
accompUshed by the party placing a finger
on the seal and saying, ” I deliver this as my
act and deed.”
A special note in the attestation clause of
any material alteration or erasure in the deed
should be made at the time the deed is
signed and witnessed.
It is customary for a deed to be witnessed,
but the absence of the attestation by a
witness does not invalidate it.
There is no prescribed size or shape for a
deed, and they are found in different forms
and sizes. ]\Iany modern deeds are drawn
on comparatively small sheets, fixed together
in book form, which are much more easily
read and dealt with than the old full-sized
sheets with the long lines.
There are two kinds of deeds, an Indenture
iq.v.), which is made between two or more
parties, and a Deed Poll (q.v.). which is made
b}- only one person, or by more than one if
their interests are the same.
Blackstone says it is called a deed ” be-
cause it is the most solemn and authentic
act that a man can possibly perform with
relation to the disposal of his property ; and
therefore a man shall alwaj’s be estopped by
his own deed, or not permitted to aver or
prove anything in contradiction to what he
has once so solemnly and deliberately
avowed.”
By the Stamp Act, 1891, the stamp duty
is :
Deed whereby any real burden is
declared or created on lands or
heritable subjects in Scotland.
See MoRTG.\GE, etc., and
Section 86.
Deed containing an obligation to
infeft any person in heritable
subjects in Scotland, under a
clause of reversion, as a security
for money.
See Mortgage, etc., and
Section 86.
£ s. d.
Deed containing an obligation to
infeft or seize in an annuity to
be uplifted out of heritable
subjects in Scotland.
See Bond, Coven.^nt, etc.
Deed of any kind whatsoever, not
described in this schedule . . 10
(See Title Deeds.)
DEED OF ARRANGEMENT. A deed of
arrangement, whclhcr under seal or not,
made by a debtor for the benefit of his
creditors, otherwise than under the Bank-
ruptcy Acts, includes (1) an assignment of
his property to a trustee, in order that it
may be realised and the proceeds divided
amongst the creditors (see Assignment for
Benefit of Creditors) ; and (2) a deed or
agreement under which the creditors agree to
accept a composition—that is, a payment of
so much in the pound in full discharge of the
debts due by the debtor to them (see Com-
position with Creditors) ; and, in cases
where creditors of a debtor obtain any con-
trol over his property or business, it also
includes a deed of inspectorship entered
into for the purpose of carrying on or winding
up the business ; and a letter of hcence
authorising the debtor or any other person
to manage, carry on, realise, or dispose of a
business, with a view to the payment of
debts ; and any agreement or instrument
authorising the debtor or any other person
to manage, carry on, realise, or dispose of
the debtor’s business, with a view to the
payment of his debts (Section 2 of the Deeds
of Arrangement Act, 1887).
A deed of arrangement is void unless
registered within seven clear days after the
first execution thereof by the debtor or any
creditor (Section 5 of the above Act). The
Registrar of Bills of Sale is the registrar for
deeds of arrangement.
The register may be searched on payment
of 2s. 6d. The registrar transmits a copy
of each deed to the registrar of the county
court in the district of which the place of
business or residence of the debtor is situate,
and any person may search such registered
copy on payment of a similar fee. (See
B.\NKRUPTCy.)
DEED OF GIFT. The conveyance of a
property as a gift.
In the case of a voluntary deed of gift,
the dcod is void against the Trustee in Bank-
ruptcy if the settlor becomes bankrupt within
two years from the date thereof, and if he
becomes bankrupt within ten years, it is void.
DEE] DICTIONARY OF BANKING [DEF
unless it can be proved that he was, at the
time of making the gift, able to pay all his
debts without the property comprised in the
deed of gift. In taking a deed of gift as
security, it is, therefore, necessary to con-
sider whether the donor was solvent at the
date he executed the deed, and, if he was
solvent then, whether his present position
is above suspicion, particularly if the deed
is less than two years old.
The consideration in a deed of gift may be
” natural love and affection.”
Where shares are transferred as a gift,
the consideration is a nominal one, say five
or ten shillings. The stamp duty on gifts
inter vivos is the same as on a conveyance
or transfer on sale, with the substitution in
each case of the value of the property con-
veyed or transferred for the amount or
value of the consideration. See Section 74,
s.s. 4, 5, and 6, Finance (1909-10) Act, 1910.
under heading Convey.’^nce. (See Gifts
INTER VIVOS.)
DEED OF INSPECTORSHIP. A deed by
which an insolvent debtor places his affairs
in the hands of his creditors, who may
appoint inspectors or trustees, in order that
the business may be wound up to the best
advantage or carried on for the benefit of the
creditors, as may be thought desirable.
(See Deed of Arrangement.)
DEED OF SETTLEMENT. The docu-
ment which took the place of the memoran-
dum and articles of association in old joint
stock companies formed prior to the Com-
panies Act of 1862. If the company with a
deed of settlement has subsequently become
registered under the Companies Act, that
deed still continues, but by Section 264 of
the Companies (Consohdation) Act, 1908,
” a company registeied in pursuance of this
part of this Act may by special resolution
alter the form of its constitution by substi-
tuting a memorandum and articles for a deed
of settlement.” The expression ” deed of
settlement ” includes any contract of co-
partnery or other instrument constituting
or regulating the company, not being an
Act of Parhament, a Royal Charter, or
Letters Patent.
DEED POLL. An indenture had ori-
ginally an indented or wavy margin, but a
deed poll was cut or polled straight at the
edge.
There is usually only one party to a deed
poll, but there may be more than one if their
interests are similar.
A deed poU commences : ” Know all
men by these presents,” etc., and the date
appears at the end. In an indenture the
date is at the beginning. (See Indenture.)
DEFACED COINS. Gold, silver, or copper
coin which is defaced by being stamped
with any name or words thereon, whether
such coin is or is not thereby diminished
in weight, is not a legal tender (24 & 25
Vict. c. 99, Section 7). (See Leg-\l Tender. )
DEFAULTER. A person who defaults
that is, who is unable to meet his obligations.
The word is principally used \vith respect
to a defaulting member of the Stock Ex-
change. (See H.\MMERED.)
DEFEASANCE. (French defaire. to
undo.)
A document containing a condition upon
the fulfilment of which the contract in the
deed to which it refers is defeated or rendered
void. The condition itself is also called a
defeasance. The document of this nature
with which a banker is most familiar is the
qualifying agreement which is signed by a
customer at the same time as he executes a
transfer of stock or shares to the banker as
security for an advance. The transfer is an
absolute conveyance of the security into the
banker’s name, but the agreement, or de-
feasance, operates to make the transfer sub-
ject to the customer’s right to have the
security re-transferred upon the repayment
of the advance.
As to an absolute disposition of property
in Scotland, qualified by a back-letter or
back-bond, see Disposition Absolute.
The Stamp Act, 1891, provides as fol-
lows : —
Defeasance. Instrument of defeasance of
any conveyance, transfer, disposition,
assignation, or tack, apparently absolute,
but intended only as a security for money
or stock.
See Mortgage, etc., and Section 86.
In respect of marketable securities
under hand only, see Agreement,
and Section 23.
DEFERRED ANNUITY. An annuity, or
annual payment of a certain sum, which
does not commence till after a specified time.
For example, a person may at any time
purchase, either by a single premium or a
yearly premium, a deferred annuit}’ as a
provision for old age, the payments not to
commence till he attains the age of, say, 55
or 60, or any age selected.
At the age of 30, a single premium of
£65 lis. ‘id., or a yearly premium of
;^5 Os. \d., may purchase an annuity of ;^10
DEFj DICTIONARY OF BANKING [DEL
to commence twenty years hence. (See
Annuity.)
DEFERRED BONDS. Bonds upon which
the rate of interest gradually increases until
a certain specified rate is reached, when they
are changed into active bonds bearing a
fixed rate of interest.
DEFERRED SHARES, DEFERRED
STOCK. Shares or stock which do not
receive a dividend until the shares or stock
which rank in front have been satisfied.
The capital of a company may be divided
into preference, ordinary, and deferred
shares or stock, or the ordinary stock may
(e.g. railway companies which have special
powers by Act to do so) be split up into
preferred and deferred ordinary. The in-
terest on founders’ shares is deferred to the
claims of prior shares.
DEFICIENCY BILLS. When the revenue
balance in the Bank of England to the credit
of the Government is insufficient for pay-
ment of the quarterly dividends, the de-
ficiency is borrowed from the Bank upon
“Deficiency Bills.” These bills must be
paid off before the end of each quarter, and
the rate of interest charged is one half of the
Bank of England rate of discount, with a
maximum of three per cent.
DEFINITIVE BOND. Where bonds are
to be issued, as, for example, by a foreign
state, a scrip or provisional certificate is
issued on payment of the money due upon
allotment. This certificate is held until all
the instalments have been paid, when it is
exchanged for the definitive bond ; that is, the
final bond with coupons attached.
DEFUNCT COMPANY. On the registra-
tion of the memorandum of association of a
company, the registrar of companies issues a
certificate certifying that the company is
incorporated, and in the case of a limited
company, that the company is limited.
(See Certificate of Incorporation.)
When the registrar ascertains that a com-
pany has ceased to carry on business, or if
he fails to receive any reply to his letters of
inquiry addressed to the company, he may
publish in the Gazette a notice that, at the
expiration of three months from the date of j
the notice, the company’s name will, unless
cause is shown to the contrary, be struck ofi !
the register, and the company will be dis-
solved (Section 242, Companies (Consohda-
tion) Act, 1908). (See Companies.)
DELEGATION OF AUTHORITY. Where
a person is acting urdc- authoiity, e.g. a
trustee or art agent, he cannot (unless his
appointment expressly permits it) delegate
his authority ; that is, he cannot appoint
someone else to act for him.
Where an account has been opened in the
names of several trustees, the cheques must
be signed by all the trustees, as they cannot,
unless the trust deed specially gives the
power, delegate their authority to one or
more of their number.
Trustees may derive their authority under
a will, or a trust deed, and when any question
of delegation arises, the banker should see
that document and ascertain exactly what
may or may not be done. If there is no
permission given to delegate, then all must
join in drawing cheques.
It frequently happens that the trustees of
a church, or chapel, or association, desire
that cheques may be signed by only a few
of their number, and in such cases the trust
deed should be consulted. Where trustees
are numerous, it seems reasonable that a few
should act for the many, but a banker would,
nevertheless, be liable if the few, acting on a
mandate from the whole body, drew cheques
and misappropriated the money, unless the
trust deed sanctioned the delegation.
An agent, or secretary, or treasurer, or
manager, or other person deriving authority
from a principal cannot delegate his authority.
Where there are several executors, one
may, in the absence of any instructions to
the contrary, draw cheques upon the execu-
tors’ account, but it is desirable that a form
of mandate be signed. E.xecutors cannot, as
a rule, delegate their authority to someone
who is not an executor. (See Mand.\te.)
DELEGATIONS. The name given by
bankers on the Continent to circular notes,
drafts, mandates, or other similar orders for
the payment of money. In this country
they are, for the purpose of stamp duty,
treated as bills of exchange. (See Circul.\r
Notes.)
DELI
WRIT OF ELEGIT. A writ issued by
the Court directing the sheriff to take
possession of a judgment debtor’s lands, and
to receive the rents until the debt is satisfied.
(See Writ of Fieri F.\cias.)
UNCALLED CAPITAL. The capital of a
company may be either fully, or only partly,
called up. The part which has not been
called up is the uncalled capital. The
uncalled capital may consist of a portion
which may be called up by the directors of
the company, as required, and also, as in the
case of a banking company which has adopted
certain provisions of the Companies Acts, of
a portion which constitutes a reserve liability
and is not capable of being called up except
in the event and for the purposes of the
company being wound up. (See Reserve
Liability.)
When debentures are issued by a com-
pany they usually include a charge upon the
uncalled capital. Such a charge does not
prevent the directors of the company making
calls upon the shareholders as may be
required for the purposes of the business.
Although the uncalled capital may have
been a considerable item when first the
debentures were issued, it may have shrunk
to a very small figure, or vanished alto-
gether, by the time the debentures are
required to be paid.
In certain cases uncalled capital may be
specially assigned or hypothecated. WTien
this is done each shareholder should be
served with notice that the unpaid capital
must be paid only to the person to whom it
has been assigned. (See C.\pit.\l.)
TRUST DEED FOR DEBENTURES. The
debentures thcni,scl-es may create a charge
upon the property of the company, or there j
may be a separate trust deed. When there
is a trust deed the company’s property, free-
hold and leasehold, is by it vested in the
trustees on behalf of the debenture holders,
and power is given therein to the trustees, !
upon the occurrence of certain events, to
enter into possession and realise the pro-
perty for their benefit. It is much more
convenient for the debenture holders to
have two or three trustees to protect their
interests, than for the debenture holders
themselves to do so. |
Every debenture holder has the right (on i
certain pavments) to a copy of anv trust
deed. (See Section 102, s.s. “2, of the Com-
panies (Consolidation) Act, 1908, under
Debenture.)
A trust deed must be registered in the
company’s register of mortgages and particu-
lars delivered to the registrar of companies.
(See Registration of Mortgages and
Ch.\rges.1 (See Debenture.)
TRUST RECEIPT. WTien an advance
is made against bills of lading, some banks,
in certain cases permit the customer to
have possession of the bills on his signing a
trust receipt, in which he acknowledges to
have received the bills of lading and agrees
to hold the goods as the bank’s property, to
keep them warehoused in the name of the
bank, and, when the goods are sold, to pay
the proceeds to the bank. The effect of the
document is to make the customer, so far
as the goods represented by the bills of
lading are concerned, the trustee for the
bank.
In such cases, a bank has to rely to a
great extent upon the honour of his cus-
tomer. If it should happen that there
should be a contra account due from the
customer to the purchaser of his goods, the
purchaser would be entitled (not having any
notice of the hypothecation to the bank) to
deduct the contra account from the purchase
price.
A separate account is usually opened for
each operation.
In some cases the document takes the
following form ;
—” We acknowledge receipt
of the advance made by you to us (upon the
security and conditions hereinafter stated)
of the sum of / value against
by your paying to
the above amount against documents for
said goods ; and we have to request you to
pass said amount with £ commission
°o to our debit. . . . These goods,
besides being subject to your usual bankers’
lien, are, in consideration of the said advance,
hereby specially hypothecated to you, and
a specific lien is hereby given to you thereon
and on the proceeds thereof (the same being
from this date out of our order and disposi-
tion) till the amount which you have paid
as an advance to us against and upon
security of same, with all interest, commis-
sion and charges, be paid or discharged, we
hereby admitting that such advance is made
on security of the hypothecation charge and
lien which we hereby create on the said
goods in your favour and on the express
condition that all rights, property and in-
terest to and in the said goods or proceeds
are vested in you as beneficial owners. We
further request you to send the bill of lading
in trust to upon conditions
that buyers are to make payment direct to
you, and. in the event of payment being
received by us instead of you, we engage to
hold same as trustees for you and to pay
over same to you or your order as and \vhen
and so soon as received by us, and should
payment not be forthcoming from buyers
before , we hereby engage to
hand you cheque for full amount without
notice from you.”
The stamp duty is sixpence.
In Reg. v. Townshend (1884, 15 Cox, 466),
where a letter of h)-pothecation of goods
was given by a fruit broker to his bankers,
in which he undertook to hold the goods in
trust for the bankers and to pay over to
them the proceeds as and when received, it
was held that the letter was a bill of sale,
being a declaration of trust without transfer.
(See Bill of Sale.)
In In re Hamilton, Young &- Co. (1905,
2 K.B. 772), where a letter of lien, accom-
panied by bleachers’ receipts for certain
goods, was given as security, it was held
that the letter was a document used in the
ordinary course of business as proof of the
control of goods, and therefore not a bill of
sale. (See Documentary Bill.)
TRUSTEE. A trustee is the person to
whom property is intrusted in order that he
may deal with it in accordance with the
directions given by the creator of the trust.
The person for whose benefit a trust is
525
TRU] DICTIONARY OF BANKING [TRU
created is called the cestui que trust (plural,
cestuis que trustent).
A trustee must take as much care of the
trust property as a reasonable business man
would of his own property.
Bankers avoid, as far as possible, opening
accounts which give specific notice of a trust.
But if John Brown and John Jones come to
a banker with a request to open an account
as ” Trustees of R. Smith, J. Brown, J.Jones,”
and the banker recommends, with the idea of
avoiding notice of trust, that the account
should be called ” John Brown and John
Jones re R. Smith,” the banker could hardly
maintain, in the event of any subsequent
trouble, that he was unaware that it was a
trust account. As a matter of fact, accounts
frequently are, by the express \dsh of cus-
tomers, opened with a direct reference to a
trust. When this is so the banker must be
careful to see that every cheque is signed by
all the parties who held themselves out to be
trustees when the account was opened. It
is not customary to inquire if the names in
which the account is opened are all the
trustees who were appointed in the will or
trust deed. Trustees cannot delegate their
authority and appoint one or more of their
number to sign cheques, unless the trust deed
gives them power to do so, and before
accepting such an authority a banker should
require to see the deed of appointment.
Trustees frequently give authorities to the
various companies in which stocks and
shares are held to pay the dividends thereon
direct to their bankers for credit of the
trustees’ account. This avoids the difficulty
which would otherwise arise of one trustee
receiving the dividends on behalf of himself
and his co-trustees.
The credit balance of an account in the
name of ” John Brown in trust for J. Jones,”
(or any similar wording giving notice of a
trust), could not be held by a banker as a set
off for an overdraft on John Brown’s
private account ; neither could a banker
successfully hold to an amount transferred
wrongfully by John Brown from the trust
account to satisfy any pressing demands of
the banker for a reduction of John Brown’s
overdraft. A transaction of that nature
would give such a plain indication of irregu-
larity that no banker would be justified in
accepting money from that source. But a
banker could hold a balance on, say, a No.
2 account as a set off to the customer’s over-
drawn No. 1 account, even if the moneys in
the No. 2 account should ultimately be
proved to be trust moneys, so long as the
banker had no knowledge of the fact.
In Ex parte Kingston (1871, 6 Ch. 682),
Lord Justice Mellish said :
” We are not
really doing any prejudice to bankers by
establishing a rule that if an account is in
plain terms headed in such a way that a
banker cannot fail to know it to be a trust
account, the balance standing to the credit
of that account will, on the bankruptcy of
the person who kept it, belong to the trust.”
The bankruptcy of a trustee does not affect
his rights to deal with the trust funds.
A banker must not be a party to a breach
j
of trust. It has been held that if it is shown
that a personal benefit to the banker is stipu-
[
lated for, it will most readily estabUsh the
fact that the banker is in privity with the
breach of trust.
Moneys belonging to clients and paid in
to the credit of sharebrokers’ or solicitors’
accounts do not fix a banker with notice of a
trust. Heber Hart says (” Law of Bank-
ing,” p. 159) : ” Where a solicitor keeps two
accounts with a banker, one under the head
‘
office account,’ and another under the head
‘
private account,’ this does not amount to
notice to the banker that moneys standing
to the former are trust moneys, or even put
the banker upon inquiry.”
With regard to securities deposited by
trustees for safe custody it has been held that
trustees are perfectly justified in depositing
j
bonds payable to bearer with bankers in
order that the coupons may be cut off when
due and collected. Securities deposited by
trustees must not be given up except under
the authority of all the trustees. (See Safe
Custody.)
If bearer bonds are lodged by a customer
as security for an overdraft, and it ultimately
transpires that the bonds do not belong to
the customer but to a trust, the banker’s
right to the security will not be affected, pro-
vided that when he took the bonds he was in
I
complete ignorance that they belonged to a
I
trust. If instead of a negotiable security, as
bearer bonds, the customer deposited a certi-
ficate of shares registered in his own name,
I
along with a memorandum of deposit or a
blank transfer, and the shares are eventually
proved to belong to a trust, the banker will
not be able to retain the security. To avoid
such an unfortunate position and to have a
complete security a banker should, when tak-
ing certificates, have the stock or shares
registered in his own name or the names of
his nominees.
TRU] DICTIONARY OF BANKING [TRU
Where trustees offer as security the deeds j
of property held by them in. trust, the banker
should ascertain from the trust deed exactly
what powers the trustees possess with regard
to charging the property.
If deeds of a trust estate are lodged as
security, with a memorandum of deposit,
and the banker has no notice of the trust, the
equitable interest of the beneficiaries will
rank in front of the equitable interest of the
banker. But if the banker holds a legal ;
mortgage his claim may take priority to that
of the beneficiaries.
If a trustee himself has a beneficial interest
in a trust property, his interest is subject
to any claim that may arise through a
breach of trust.
A bank may act as sole executor under a
will, or as trustee under a will or settlement,
provided that it has power to do so by its
memorandum of association.
By Section 10 of the Trustee Act, 1893 :
” (1) Where a trustee, either original or
substituted, and whether appointed
by a Court or otherwise, is dead, or
remains out of the United Kingdom
for more than twelve months, or
desires to be discharged from all or
any of the trusts or powers reposed
in or conferred on him, or refuses or
is unfit to act therein, or is incapable
of acting therein, then the person or
persons nominated for the purpose
of appointing new trustees by the
instrument, if any, creating the
trust, or if there is no such person,
or no such person able and willing
to act, then the surviving or con-
tinuing trustees or trustee for the
time being, or the personal repre-
sentatives of the last surviving or
continuing trustee, may, by writing,
appoint another person or other per-
sons to be a trustee or trustees in the
place of the trustee dead, remaining
out of the United Kingdom , desiring
to be discharged, refusing, or being
unfit or being incapable, as aforesaid.
‘
‘ (4) The provisions of this Section relative
to a trustee who is dead include the
case of a person nominated trustee
in a will but dying before the testa-
tor, and those relative to a continu-
ing trustee include a refusing or
retiring trustee, if willing to act in
the execution of the provisions of
this Section.”
On the appointment of a new trustee, the
number of trustees may be increased. (Sec-
tion 10, s.s. 2.)
Section 17, s.s. 2 and 3, enacts :
—
” (2) A trustee may appoint a banker or
sohcitor to be his agent to receive
and give a discharge for any money
payable to the trustee under or by
virtue of a policy of assurance, by
permitting the banker or sohcitor
to have the custody of and to pro-
duce the policy of assurance with a
receipt signed by the trustee, and a
trustee shall not be chargeable with
a breach of trust by reason only of
his having made or concurred in
making any such appointment.
” (3) Nothing in this Section shall exempt
a trustee from any liability which
he would have incurred if this Act
had not been passed, in case he
permits any such money, valuable
consideration, or property to remain
in the hands or under the control of
the banker or sohcitor for a period
longer than is reasonably necessary
to enable the banker or solicitor (as
the case may be) to pay or transfer
the same to the trustee.”
j
The High Court has power to appoint new
I
trustees whenever it is found inexpedient or
I
impracticable to appoint them without the
assistance of the Court. (Section 25.)
Where any monej-s or securities are de-
I
posited with a banker, and the majority of
I
the trustees are desirous of paying or deliver-
ing the same into Court, but the concurrence
j
of the others cannot be obtained, the Court
1 may order payment or delivery to the
j
majority of the trustees, for the purpose of
\
payment into Court, and the payment and
delivery shall take effect as if the same had
been made on the authority of all the trus-
tees. (Section 42, s.s. 3.) (See Custodi.\n
Trustee, De-\th of Trustee, Public
Trustee, Trustee Investments.)
TONTINE POLICY. A life poHcy on
which no bonus is payable in the event of the
death of a poUcy holder, such bonus only
vesting on the policy maturing at the end
of a given period, usually fifteen or twenty
years. During that term of years (the
Tonttne period) the policy will not have a
surrender value. In the case of an ordinary
endowment assurance, the bonus additions
are payable in the event of the death of the
assured, or on such policy maturing.
TOT UP. To sum up figures so as to
TOW] DICTIONARY OF BANKIXG [TRA
ascertain the total, or tot as it is called, for
short.
TOWN CLEARING. The Town Clearing
is a section of the business of the London
Bankers’ Clearing House, and includes the
head offices of the clearing banks and most
of their branches in the City. Cheques on
offices included in the Town Clearing have
T printed on the left-hand bottom corner.
There are two Town Clearings each day, in
the morning and in the afternoon. (See
Cle.\ring House.)
TRADE BILL. A bill drawn in connection
with actual trade operations. The term is
used to distinguish the paper from a bank
bill or from a ” kite ” or ” accommodation
bUl” iq.z:).
TRANSFER CERTIFICATE. In the
few companies which do not issue a fresh
certificate upon a transfei of the shares, a
transfer certificate is issued to be preserved
along with the original certificate. For
example, where John Brown holds ten
certificates for one share each in the King-
moor Water Company, Ltd., and he sells
the shares to John Jones, the company
gives Jones a transfer certificate in the
following form : —I do hereby certify that a
deed of transfer of ten ordinary shares, etc.,
in the Kingmoor Water Company, Ltd.,
bearing date the day of
19 , from John Brown, of to
John Jones, of , has been
deposited at the office of the said Company
in Carlisle, and duly registered in their
books on the day of
19 .
Secretary.
The ten old certificates and the transfer
certificate are, of course, kept by Jones.
TRANSFER DAYS. The Transfer Days
at the Bank of England are Monday, Tues-
day, Wednesday, Thursday and Friday.
Those are the days on which transfers ma^’
be made of those stocks which are registered
in the books of the bank. If a transfer is
made on a Saturday a fee of 2s. 6d. is charged.
(See N.\Tio.N.\L Debt.)
TRANSFER OF SECURITIES (PUBLIC
TRUSTEE). In addition to the information
given under Public Trustee (q.v.) regard-
ing the powers and duties of the Public
Trustee, bankers should note the somewhat
peculiar practice of the Department in
connection with the transfer of securities.
By Rule 25 of the Statutory Rules and
Orders, 1907 :—
” (1) No transfer by the Public Trustee
of any securities or assurance by
him of any land forming part of
the trust property shall be made
except under the hand and official
seal of the Public Trustee, or under
the hand and seal of an officer of
the Public Trustee authorised in writ-
ingbyhim to act in that behalf either
generally or in any particular case.
” (2) Any such transfer or assurance by
an officer so authorised shall have
the same effect as if the same were
made by the Public Trustee under
his hand and official seal.”
Sales and purchases of investments are
made only upon the written order of the
Public Trustee.
Where registered stocks are to be trans-
ferred to the Public Trustee, the deed of
transfer is signed by the Pubhc Trustee.
If there are several accounts in his name,
each account is ear-marked by a name, a
letter, a figure, or a combination thereof.
The ear-marking is added to the deed of
transfer in the Department of the Public
Trustee. The object of the ear-mark is to
enable the Public Trustee to identify each
holding with the particular trust to which
it belongs. In the case of a joint account
in the names of the Public Trustee and
another person, no ear-marking is necessary
as the additional name is sufficient identifi-
cation, but if there are two or more joint
accounts in the same names it is requisite
to ear-mark them.
Banks and other companies recognise this
practice, and make out separate dividend
warrants for each account.
When a sale or transfer of registered
stock takes place, the deed of transfer is
executed by the Public Trustee. Upon a
sale, the Public Trustee requires payment
of the proceeds by means of a banker’s
draft. Upon a purchase, payment is made
i by the Public Trustee only when a duly
certified transfer, or an executed transfer
with the relative certificate attached, is
1 delivered at the Securities Department
of the Public Trustee Office or at a bank,
as may be arranged.
In connection with the purchase or sale
of bearer securities the Public Trustee may,
upon a sale, request a banker to surrender
such securities against payment of the
j
proceeds, and, upon a purchase, may request
j
him to make payment therefor upon
deliverv of the securitie
DEBENTURE. (Latin debeo, to owe.)
Where a company requires to borrow, it
frequenth’ does so by an issue of debentures,
that is by documents under the seal of the
company acknowledging the debt. A de-
benture is usually secured by a mortgage or
charge, and represents a separate debt of a
definite round sum bearing a fixed rate of
interest. In the case of debenture stock,
the certificates are for different amounts,
representing parts of a large loan or debt.
Debentures are the instruments evidencing
a !oan to the company.
Although debentures generally give secur-
ity over the property of a company, they
may be merely an acknowledgment of a debt,
and give the holders no advantage o-er other
creditors. It is therefore important, when
debentures are offered as security, to ascer-
tain if, and in what manner, they are secured.
It is also necessary to see that the company
has power, by its memorandum and articles
of association, to issue debentures, and that
any such power has not been exceeded ; in
other words, that the amount issued is
within its borrowing powers. It should also
be noted whether the debentures are trans-
ferable only “subject to equities ” —that is,
are subject to any debt due by the trans-
feror to the company—or whether the
debentures are payable without regard to
any such debt, that is, “without regard to
any equities ” between the company and the
transferor.
Debentures and debenture stock are
usually secured by a trust deed, sometimes
called a ” covering deed,” by which the
property of the company is vested in
trustees upon trust for the debenture holders
or debenture stockholders. When the de-
bentures and debenture stock are secured
[
by a ” fixed ” charge, the holders are free
from the danger of anyone securing a prior
charge, and the trustees are given powers to
enable them to deal with the mortgaged
property in order, when necessary, to raise
money to repay the debt to the holders. If,
however, the charge is a ” floating ” one and
not ” fixed,” the company can create prior
[
charges, or sell the property or deal with it
as they desire at any time before the charge
j
becomes fixed. A debenture creating a
floating charge often, however, contains a
177
DEB] DICTIONARY OF BANKIXG
condition of this nature: —”The debentures
of the said series are all to rank pari passu
as a first charge on the property hereby
charged, without any preference or priority
one over another, and such charge is to be a
floating security, but so that the company
is not to be at liberty to create any mortgage
or charge on its undertaking pari passu with
or in priority to the said debentures.” If
a banker obtains a charge, and has notice
of such a condition, his charge will be
postponed to the charge crealed by the
debentures.
It is usual for a debenture to be secured
by a ” fixed ” charge upon the land of the
company and by a ” floating ” charge upon
its stock, book debts and uncalled capital.
By that means the company can continue
its business and use up and vary the assets
included under the floating charge. If the
company defaults in paymeit of the prin-
cipal and interest secured by the debentures,
or goes into liquidation, the floating charge
becomes fixed, and attaches the assets as
at that date. Although debentures ma}’ be
secured by a trust deed, a banker should
ascertain the nature of the property, as the
propert)’- may prove to be of little value.
Wliere a debenture (not being one of a
series) is give a by a company to secure its
account, the deeds of the property should
be deposited with the banker along with
the debenture, otherwise an equitable mort-
gagee, without notice of the debenture, might
obtain priority.
A debenture which is issued in the names
of the bank’s nominees, as security, should
be accompanied by a qualifying agreement,
to show the purpose for which it has been
given. (See Qu.a,lifying Agreement.)
A debenture is not a bill of sale. The
Bills of Sale (1878) Amendment Act, 1882,
Section 17, provid?s :
—” Nothing in this Act
shall apply to any debenturc3 issued by any
mortgage, loan, or other incorporated com-
pany, and secured upon the capital stock or
goods, chattels, and effects of such com-
pany.”
Debentures are issued for amounts varying
from, say, £\Q to £\0Q, and are repayable
either upon notice or at the end of a certain
number of years, say five, ten, or fifteen
years from the dale of the instrument.
They may also be perpetual or irredeemable,
in which case the holder is entitled to an
annuity or interest upon the money yearly
in perpetuity. Ab hough called irredeem-
able, they are usually redeemable upon the
company going into voluntary or compulsory
liquidation.
Where there is a series of debentures, each
of them is expressed to rank equally with the
others of the series. The interest upon the
debentures may be paid by warrant or by
coupons issued along with the debentures.
Debentures are sometimes payable to
bearer and sometimes to the registered
holder. And bv custom thev mav be treated
as negotiable instruments. When debentures
to bearer are offered as security, a mere
deposit of them may be taken (a form of
transfer not being necessary), or they may
be accompanied, as is preferable, by a
memorandum of deposit or an agreement
showing for what purpose they have been
left with the banker. In Bechuanaland
Exploration Co. v. London Trading Bank
(1898, 2 Q.B. 658), where bearer debentures
of an English company had been stolen
and pledged with the bank, it was held that
the bank was entitled to the debentures
because they were, by the general custom
of merchants, negotiable instruments and
transferable \<\ d.livcry. The niL !:’!, -I debentures payable to bearer – > ; ii n .1 again in the case
of EdHst.il. V. .b;;…’.;; i>- Co. (1902, 2 K.B.
145), when the decision in the Bechuanaland
case was followed. In the judgment of
Bigham, J. (afterwards Lord Mersey), it is
said : “It has been argued that the attri-
bute of negotiability could not be attached
to a contract except by the law merchant
and that these bonds are of such recent
creation that their negotiability under that
branch of the law cannot be justified. It is
no doubt true that negotiability can only
be attached to a contract by the law mer-
chant or by a statute ; and it is also true
that, in determining whether a usage has
become so well established as to be binding
in the courts of law, the length of time
during which the usage has existed is an
important circumstance to take into con-
sideration ; but it is to be remembered that
in these days usage is established much
more quickly than it was in days gone by ;
more depends on the number of the trans-
actions which help to create it than on the
time over which the transactions are spread ;
and it is probably no exaggeration to say
that nowadaj-s there are more business
transactions in an hour than there were in
a week a century ago. Therefore the com-
pai-atively recent origin of this class of
securities in my view creates no difficulty
DEB] DICTIONARY OF BANKING [DEB
in the way of holding that they are negoti-
able by virtue of the law merchant ; they
are dealt in as negotiable instruments in
every minute of a working day, and to the
extent of many thousands of pounds. It is
also to be remembered that the law merchant
is not fixed and stereotyped ; it has not
yet been arrested in its growth by being
moulded into a code ; it is, to use the words
of Cockburn, C. J., in Goodivin v. Robarts
(1875, L.R. 10 Ex. 337), capable of being
expanded and enlarged so as to meet the
wants and requirements of trade in the
varying circumstances of commerce, the
effect of which is that it approves and
adopts from time to time those usages of
merchants which are found necessary for
the convenience of trade ; our common
law, of which the law merchant is but a
branch, has in the hands of the judges the
same facility for adapting itself to the
changing needs of the general public ;
principles do not alter, but old rules of
applymg them change, and new rules spring
into existence. Thus it has been found
convenient to treat securities like those in
question in this action as negotiable, and
the courts of law, recognising the wisdom
of the usage, have incorporated it in what
is called the law merchant, and have made
it part of the common law of the country.
In my opinion the time has passed when
the negotiability oi ;> .inr lionds, whether
Government bonds ..r ti.i.li;i^ l).)nds, foreign
or English, can be ial!i..l in .[iicstion in our
Courts. The existence ol the usage has been
so often proved and its convenience is so
obvious, that it must be taken now to be
part of the law ; the very expression ‘ bearer
bond ‘ connotes the idea of negotiability, so
that the moment such bonds are issued to
the public they rank themselves among the
class of negotiable securities. It would be
a great misfortune if it were otherwise, for
it is well known that such bonds are treated
in all foreign markets as deliverable from
hand to hand ; the attribute not only en-
hances their value by making them easy of
transfer, but it qualifies them to serve as a
kind of international currency ; and it
would be very odd and a great injury to
our trade if these advantages were not
accorded to them in this country.”
^Vhere debentures or certificates of deben-
ture stock, payable to a registered holder,
are given as security, they should, to form
a complete security, be transferred into the
names of the bank’s nominees. When they
give a charge upon the company’s land the
transfer must be under seal. (See Transfer
OF Sh.^res.) The debentures or certificates
may also be lodged with a blank transfer
that is, a transfer in which the space for the
transferee’s name is left blank, or which is
undated. Notice of the charge should be
given to the company. When necessary,
the blank transfer is completed by the banker
and sent in to the office of the company for
registration. A blank transfer, however, is
not a satisfactory document. (See Bl.\nk
Transfer.) If the debentures are about
due for payment, they should be indorsed
by the registered owner and authority given
to the banker to write a receipt above the
signature.
Where debentures are deposited by a
company as security for a loan, and the
debentures are of a larger face value than
the amount of the loan, the holders are
entitled to dividends upon the full amount
of the debentures until the loan is repaid.
When a company, which is indebted to a
banker, issues debentures forming a specific
charge upon the property of the company,
without applying the money so raised in
reduction of the loan or overdraft, the banker
should review his position, because, in the
event of a winding up, he will, unless other-
wise secured, rank merely as an unsecured
creditor alter the debenture holders.
A private firm sometimes registers as a
limited company for the sole purpose of
obtaining powers to issue debentures as a
floating charge upon its stock, and of avoid-
ing the necessity of having to give a bill of
sale upon the stock in order to borrow
money thereon.
Every company shall, within two months
after allotment, and within two months after
registration of the transfer of any debentures
or debenture stock complete, and have ready
for dehvery, the debentures, and certificates
of debenture stock, unless the conditions of
issue otherwise provide. (See Section 92 of
the Companies (Consolidation) Act, 1908,
under heading Certificate.)
Every mortgage or charge created after
July 1, 1908, by a company, registered in
England or Ireland, must be delivered to
the registrar of companies for registration
within twenty-one days after the date of its
creation. Tlie holding of debentures en-
titUng the holder to a charge on land shall
not be deemed to be an interest in land.
WTiere a series of debentures containing, or
giving by reference to any other instrument.
179
DEB] DICTIONARY OF BANKING [DEB
any charge to the benefit of the debenture
holders, is created by a company, the
required particulars must be delivered to
the registrar within twenty-one days after
the execution of the deed containing the
charge, together with the deed containing
the charge, or if there is no such deed, one
of the debentures. The registrar shall give
a certificate of the registration of any mort-
gage or charge, and the company shall cause
a copy to be indorsed on every debenture or
certificate of debenture stock which is issued
by the company and the payment of which
is secured by the mortgage or charge so
registered.
In the ” Handbook on the Formation,
etc., of Joint Stock Companies,” by F. Gore
Brown, K.C., and William Jordan, the fol-
lowing information regarding the registra-
tion of debentures is supplied (p. 202, 30th
edition) :
” Before the 1st July, 1908, the
more usual practice was to register the
individual instruments as separate charges
under sub-section 1 of Section 14 of the
Act of 1900, instead of the series under sub-
section 4. In cases w-here debentures of a
series were registered separately and a
further issue of the same series is now made,
the series should be registered within twenty-
one days after the issue of the first of the
further debentures. The Registrar considers
that registration of the series is also neces-
sary when debentures registered separately
are renewed by indorsement, even though
they may not have matured.”
In addition to being registered with the
registrar of companies, all debentures speci-
fically affecting property of the company
must be entered in a register kept by the
company, but a debenture containing merely
a floating charge does not require to be
entered in this register, though it does
require registration with the registrar of
companies.
For full particulars regarding registration,
see the sections of the Companies (Con-
soUdation) Act, 1908, under heading
Registration of Mortg.\ges and Charges.
Any creditor or member of a company
may inspect the register of mortgages which
is kept by the company, without payment
of a fee, and any other person may inspect
it on payment of one .shilling. Any person
may inspect the documents kept by the
registrar of companies on payment of one
shilling. {See Registrar of Companies.)
A copy of any trust deed for securing an
issue of debentures shall be forwarded to
any debenture holder on pa^Tuent, in the
case of a printed deed, of one shilhng, or less,
or, where the deed is not printed, on pay-
ment of sixpence for every 100 words
required to be copied (Section 102, s.s. 2,
Companies (Consolidation) Act, 1908).
Where a company has redeemed any
debentures, the company, unless the articles
or conditions of issue expressly otherwise
provide, or unless the debentures have been
redeemed in pursuance of any obligation
so to do (not being an obligation enforceable
only by the person to whom the redeemed
debentures were issued or his assigns), shall
have power to keep the debentures alive for
the purposes of re-issue (Section 104, s.s.
I ) . Sub-section 3 of the same Section says :
” Where a company has either before
or after the passing of this Act
deposited any of its debentures to
secure advances from time to time
on current account or othenvise, the
debentures shall not be deemed to
have been redeemed by reason only
of the account of the company
having ceased to be in debit whilst the
debentures remained so deposited.”
The re-issue of a debenture shall be treated
as a new debenture for the purposes of stamp
duty.
In the event of default in the payment of
the principal and interest secured by a
mortgage debenture :
The debenture holders may sue the
company for repayment of principal
and interest ; or.
Apply to the Court for an Order for sale
of the property ; or.
Apply for a receiver to be appointed to
wind up the company ; or.
If there is a trust deed giving the necessary
power, the trustees maj^ sell the property,
or enter into possession ; or.
If all the debenture holders agree, they
may apply to the Court for an order of
foreclosure. (Sec Foreclosure.^
The exact terms of the debenture or of
any trust deed must be strictly observed.
As to tlio «!t,nnp duty on a debenture for
securing tile jlin hh m or repayment of money,
or the ir,iii-l’ I ^r n transfer of stock, see
MoRTGAGi:, I K ., \M> -Marketable Security.
When the debcntiucs are stamped, the
trust deed, if any, takes only a ten-shilling
stamp. (See Companies, Registration of
Mortgages and Charges.)
DEBENTURE HOLDER. The person
who holds a debenture. He may be either
DEBJ DICTIONARY OF BANKINC; [DEC
a registered holder, or a holder of a debenture
payable to bearer. In the former case a
document of transfer is necessary to pass the
ownership to another person, but in the
latter case the debenture is transferable by
simple dehvery.
A debenture holder is a creditor of the
company, as the debenture represents a loan
to the company, and the interest thereon
must be paid before any dividend is received
by the shareholders. (See Debenture.)
“
DEBENTURE STOCK. Debenture stock
is essentially the same as debentures, and
both are usually secured by a charge or
mortgage. Debentures, however, are for
definite round sums, as separate debts,
whereas certificates of debenture stock are for
different amounts, as parts of one large debt.
The certificates do not require a stamp,
but any deed creating a security for the stock
is subject to the same duty as a mortgage
fe..’.).
When a certificate of debenture stock is
gi-en as security, a transfer from the regis-
tered holder to the bank’s nominees, accom-
panied by a qualifying agreement, should
be taken, and, to make the security fully
satisfactory, the transfer should be registered. |
(See Bl.\nk Tr.\nsfer, Debenture, Loan ]
Capit.^l, Sh.are Capital. Transfer of ,
Shares.)
DEBIT. (Latin dehitum, what is owed.)
When a banker pa3-s a cheque drawn b}’ a
customer, the amount is placed to the debit
of the customer’s account. When the
amounts debited are greater than the
amounts paid to credit, the resulting balance
is a debit one, or a ” debtor balance ” as it !
is called (shown, thus, Dr. £\0Q) and repre-
sents the sum due by the customer to the
banker, the banker being the creditor and the
customer the debtor.
COM 68. CON
conBOKISE. An adjustment of claims
in dispute by mutual concession, either
without resort to legal proceedings, or
on the condition of abandoning such
proceedings if already commenced.
COnTROLLER. 1. One who observes
ann examines the accounts of the
collectors of public money. 2 Steph.
Com.
2. The comptroller in bankruptcy was an
officer appointed under the repealed
Bankruptcy Aet, 1869; the trustee in
any bankruptcy being required to for-
ward the statement of his accounts,
after they had been audited by the
committee of inspection. 2 Steph. Oom.
S. An officer of the royal household.
4. The comptroller of the hanaper was
an officer of the Court of Chancery,
whose office was abolished in 1842 by
5 ole 6 Vict. c. 103, s. 1.
ConlJLsolty PROT.
AU~HORITIES.]
[PILOTAGE
COJ(PUBGATOBS. The twelve persons
who, when a parson was triJld and
made oath of his own innocence, were
called upon to swear that they believed
he spoke the truth. Supposed to be
the origin of trial by jury. 4 Steplt.
Colli. [BENEFIT OF CLERGY.]
COJIP11TO. An ancient writ to compel a
bailiff, receiver or accountant to yield
up his accounts. Also lay against
guardians.
CONCEALERS. Persons who were used
to find out lands which were kept
privily from the king by persons
having no title thereto.
CONCEALDNT, i.Il., (1) 811ppre8m ‘/Jeri
to the injury or prejudice of another:
if active and fraudulent it is ground for
rescinding a contract. (2) Of birth is a
misdemeanor. See 24 <$’ 25 Viet. c. 100,
B. 60. (3) Of documents of title to
lands or testamentary instruments is
felony. See 24 .t 25 Vict. c. 96,
11.28, 29, and 25 & 26 Viet. c. 67, s. 44.
CONCESSIT SOLVEBE (he granted and
agreed to pay). An action of debt
upon a simple contract. It lies by
custom in the Mayor’s Court, London,
and the Bristol City Court.
CON~ILIATION. A settling of disputes
Without litigation. See Oonciliation
Act, 1896, 59 or 60 Vict. c. 30.
CONCLUDED is often used in the same
sense as mopped. [CONCLUSION; Es-
TOPPEL.]
CONCLUSION is when a man, by his own
act upon record, hath charged himself
with a duty, or other thing. In this
sense it is tantamount to elfoppel.
rESTOPPEL. ] And this word l’oncluaion
is taken in another sense, as for the end
or later part of any declaration, plea
in bar, replication, conveyance, etc.
00101’1.
CONCORD. 1. Part of the process by
which a fine of lands was levied, prior
to the abolition of fines by 3 ole 4.
Will. 4, c. 74. It was the agree-
ment by which the pretended defendant
acknowledged that the lands in question
were the right of the complainant. 2
Bl.; 1 Step”. 00111. [FINE,I.]
2. A compromise
CONCUBBENT lUBISDICTIONS. The
jurisdiction of several different tribu-
nals authorised to deal with the same
subject-matter at the choice of the
suitor.
CONCUBBENT WRITS. Duplicate orig-
inals, or several writs running at the
same time for the same purpose, for
service on a person, when it IS not known
where he is to be found; or fol’ service
on several persons. as when there are
several defendants in an action. R. S. C.
1883, Ord. VI.
CONDITION. A restraint annexed to a
thing so that by the non-performance
.the party to it shall receive prejudice
and loss. and by the performance com-
modity 01′ advantage: it is also defined
to be what is referred to an uncertain
chance which mayor may not happen.
The following are the most important
kinds of condition: (I) A condition in
a deed, or express: a condition in law
or implied. (2) Precedent or subsequent.
1 Steph. COlli.
CONDITIONAL FEE. otherwise called a
fee simple conditional, properly com-
prises every estate in fee simple granted
upon condition; but the term is
usually understood to refer to that
particular species called a “conditional
fee” at the common law, which is an
estate restrained in its form of dona-
tion to B01lle pa1·ticula1· ‘,eira (exclusive
of others) : as, to the heirs of a man’s
body, or to the heirs male of his body;
which the judges of former days
construed, not as an estate descendible
Digitized by GoogleCON .64
ClONDITIOlfAL J’EE-conti nuetl.
to some particular heirs, but an estate
upon condition that the land was to
revert to the donor, if the donee had
no heirs of his body. This construction
()f gifts of lands was put a stop to by
~. I of the Statute of Westminster the
Second, commonly called the statute
De donis conditionaUblls, in the year
1285, which provided that henceforth
the will of the donor should be observed
.recuntlum fm’lI/am ion carta doni ei/!-
p1’~8a11l (according to the form expressed
in the charter of gift). 2 Bl.; 1 Stepl~.
Com. [DE DONIS; ESTATE.l
oCONDITIOlfAL LIJ[ITATIOlf is a phrase
used spccially in the two following I
ways:-
1. Of an cstate or inl(,l’cst in bnd so
cxprcssly dcfinccl anti limitcrj by the
words of its “I’mlion that it eannot
endure for any longcr timc than t ill a
particular contingcncy happpns. 1
Sll’pll. (,’0/11.. That j” a pI’r.,rllt inlrrrst,
to be ,Ii ,’cHlcd on a/II/lire c·ontingcncy.
2. Of a futurc, usc 01′ inlu’cst limited
to take cffectupon agiv(‘nconlin~(‘ney,
in dcrogation of a prceeding eslate 01′
interest. This is likewise called a
,,’tiftillfl or Xl’l:Ollilm’1/ 11SC, and also an
riuc1dory illtrrrct. 11 is a fill ure estate
to cOllie inlo posses~ion upon a given
-contingcnr·y. 1 Sfl,}}li. (‘0111. [ESTATE;
EXECUTORY INTBRE!<T.]
Thus, if land he granlpd to the use of
A. and his heirs until B. I’ctUI’llS from
Rome. RIlII then to thc usc of Rand his
heirs. A.’s “Hi ai e is a c:onditionallimita-
lion of the lirst sOI-l.anel B:~ estale is a
condit iOlla I limiLillon of the second sort
above menl ioned.
(:OlfDITIOlfS OJ’ SALE. The terms stated
in WI it in~, upon whieh Rn csl.ale or
intl’1’cst is to be sold bv public auclion.
The Convcyaneiug A(‘t.. ItlSl, applies
cert ain eondil ions of sale to all con-
tracls, unless otherwise expressly stated.
COlfDITIOlfS PRECEDElfT AND SUB-
SEQUENT. A l’ond!l ion prl'(‘l’lll’lIt, in
a eonve,van”e 01′ di~p08it.ion (,f an estate,
is a coudil ion which must happen or be
performed bcl’ol’e the cslaLe 01′ interest
ean vest. A “ondition 87tlJxr,/lIcnt is a
condition of t he failure or non-per-
formance of which an estate already
vested may be defeated. 2 Bl.;
1 Stepl~. COlli.
i:ONDOlfATIOlf. A pardoning or remis-
si.on, especially of conjugal offence.
CON
The immediate e:ffect of condonation is
to bar the party condoning of his or
her remedy for the offence in question.
2 Step”‘. Oom.
COlfDUCT J[ODY. Money for the pay-
ment of the reasonable expenses of a
witness at a trial.
CONDUCTIO. (Roman law.) A hiring
(q.r.).
COllEY. A rabbit. See GAME.
COlQ’EDERACY. A combination of two
or more persons to commit some un-
lawful act or to do some damage or
injury to another. [CONSPIRACY.]
COlQ’ERElfCE. 1. In parliamentary
practice, is a mode of communicatinK
important matters by one house of
parliament to the other by means of
deputations of their own members.
May’s Parl. Pract; 2 Step”‘. Com.
2. A meeting between a counsel and
solicitor to advise on their client’s
cause.
COlfJ’ESSIlfG ERROR. The consent bv
a party in whose favour judgment hi’!
been given that such judgment shall
be reversed, on allegation by the
opposite party of “error” in fact 01′
in law. [ERROR.]
COlfJ’ESSIOlf AND AVOIDAlfCE is a
plea in bar whereby a party confuses
the facts as stated by his adversary,
but alleges some new matter by WH_y of
a’/’oitling the legal effect claimed for
them. As, if a man be sued for an
assault, he may admit the assault, but
plead that he committed it in self-
defence. 8 Step”‘. Com.
COlQ’ESSIOlf BY CRIJ[IlfAL may be in
open court when called upon to ,Elead
to the indictment or elsewhere. LVOL-
UNTARY CONFESSION.]
COlQ’ESSIOlf, lUDGDlfT BY. See
COGNOVIT ACTIONEM.
COlQ’ESSIOlf OJ’ DD’ElfCE. Where
defendant alleges a ground of defence
arising since the commencement of the
action, the plaintiff may deliver con-
fession of such defence and sign judg-
ment for his costs up to the time of
such pleading unless otherwise ordered.
Ii. S. C. 1883, Ortl. XXIV. ,.. 8.
COlfJ’ESSIOlf OJ’ PLEA. Same as CON-
lI’ESSION 011′ DEFENCjt (g.”.’.).
Digitized by GoogleCON
CONFESSO, BILL TAXElf PBO. [PRO
CONFESSO.]
CODmENTIAL COHlttUMCATION.
[PRIVILEGED COMMUNICATION.l
CODIlUfATIO CHABTABUJ[ (confirma-
tion of the charters). A statute
enacted 25 Edw. 1, A.D. 1297, confirm-
ing and making some additions to
Magna Charta (g. v.). 1 &eph. Com.;
2 Steph. Com.
CODIlUfATION_ 1. A conveyance of ali
estate or right, whereby a voidable
estate is made sure and unavoidable or
a particular estate is increased. 1
Steplt. Cllm.
2. The ratification by the archbishop
of the election of a bishop by dean and
chapter.
3. Confirmation is also the Scotch term
corresponding to probat8 and letterll
/If adminilltration in England.
CODISCATE. To appropriate to the
revenue of the Crown.
COlO’LICT OF LAWS. The discordance
betweeil the laws of one country and
another, as applied to the same subject-
matter; as, for instance, in the case of
a contract made in one country and
intended to be executed in another.
See Story’s Clltljl-iet of LaWII; IVest-
lake’ll P,ivate international Law;
Dicey’s Conflict lif Laws.
CODOBJ[rrY, BILL OF. A bill filed by
an executor or administrator against
the creditors of the deceased, for the
adjustment of their claims. where the
affairs of the testator or intestate are
found to be so much involved that it
would not be safe to administer the
estate, except under the direction of
the Court of Chancery: a final decree
was then issued by the court, to which
all parties were bound to cOttfol·m.
CONFUSION. A word in Scotch and
French law, signifying the merger or
extinguishment of a debt by the debtor
succeeding to the property of his
creditor, or -vice versii. Bell.
CODUSION OF GOODS is where the
goods of two persons are so intermixed
that the several portions can be no
longer distinguished; as if the money.
corn or hay of one man be intermixed
with tha • of another. If the inter-
mixture be by consent, it is supposed the
proprietors have an interest in common
in proportion to their shares, but if one
L.D.
65 CON
man wilfully intermixes his property
with another’s without his consent, the
law gives the entire property to him
whose right is invaded and endeavoured
to be rendered uncertain without his
consent. 2 Bl.; 2 &eph. Com.
CONGE D’ACCOBDD signifies leave to
accord or agree for the purpose of
levying a fine, prescribed by stat. 18
Edw. 1. Oowel; 2 Bl. ; 1 &eplt. Com.
[CONCORD; FINE, 1.]
CONGE D’ELmE. The king’s per-
mission to a dean and chapter to choose
a bishop. The dean and chapter are
bound to elect such person as the
Crowi!. shall recommend (whose name
is given in the letter missive which ac-
companies the c07l.g4 d’elire), on pain of
incurring the penalties of a prfBmunire.
1 Bl. ; 2 Steph. Com.
CONGEABLE. A thing lawfully done, or
done with leave. Cowel.
CONIOINTS. Persons married to each
other.
CON1UGAL BIGJITS, SUIT FOB RESTI-
TUTION 01′, is a suit by a husband to
compel his wife to live with him, or by
a wife to compel the husband to take
her back. 2 Stepll. COin.
CONIUBATION. A plot or compact made
by men to do any public harm. In ollr
common law it is specially used for such
as have personal conference with the
devil. or evil spirits, to know any secret,
or to effect any purpose. 5 Eli:;;. c. 16 ;
Cowel. The laws against conjuration
and witchcraft were repealed in 1736,
by 9 Geo. 2, c. 5. 4, Bl.; 4, Steph.
Oom..
CODIVANCE signifies shutting of the
eye. It is used especially with
reference to a husband tacitly en-
couraging his wife to commit adultery.
in order that he may obtain a divorce.
Such connivance, if established, will
deprive the husband of his remedy.
2 Steph. Com.; 20 .t 21 Viet. c. 85.
CONSANGUINEUS FRATER. A brother
by the father’s side, in contradistinction
tofrater uterimtB, the son of the same
mother.
. CONSANGUINITY. Relationship by blood,
as opposed to o,t/in:ity, which is relation-
ship by marriage. 2 &eph. Oom.
AFFINITY.j
F
Digitized by GoogleCON
CONSCIElfCE, COURTS OF. Local courts
for the recovery of small debts, formed
before the passing of the County Courts
Act, 1846 (9 & 10 Vict. c. 95), in various
parts of the kingdom, by special Acts
passed for that purpose. They are by
that Act for the most part abolished.
3 Steph. a.m. .
CONSDT presupposes a physical power,
a mental power and a free and serious
use of them, and if it be obtained by
any fraud or undue influence it is not
binding.
CONSEQUENTIAL DAJU.GE OR nUURY
is damage or injury arising by C1I1I8e-
quence or collaterally to one man, from
the culpable act or omission of another.
3 Steph.. 00111.
CONSERVATOR OF TlIE PEACE is he
that hath an especial charge, by virtue
of his office, to see the king’s peace
kept. Some cons03rvators of the peace
are so rirtute I!fficii, some are ‘specially
appointed, and are now called justices
of the peace. 2 &eph. Com.
CONSIDERATION. A compensation,
matter of inducement, or quid pro
‘litO, for something promised or done.
Valuable consideration is necessary to
make binding every contract not under
seal. It need not be adequate but must
be of some value in the eye of the law
and must be legal: it must also be
present or future, it must not be past.
2 &eph. Co-“t.
There is also a consideration called
the consideration of “blood;” that is,
natural love and affection for a near
relation. This is, for some purposes,
deemed a good consideration; but it is
not held to be a oralltable consideration,
so as to support an action on a simple
contract. It is sometimes called me,.i-
torioU8 consideration. 2 Steph. Co-llt.;
A 118011 on ContracU. .
CONSIDDATUJ[ BST PER CUBIAJ[ (it
is considered and adjudged by the
court). The formal and ordinary com-
mencement of a judgment.
CONSIGNATION, in Roman and Scottish
law, is the payment of money by a debtor
into the hands of a party other than
the creditor, either because the creditor
refuses to accept it, or by prior special
agreements between debtor and creditor.
It includes the depositing of money with
a stakeholder. Bell; Paterll1l1l.
CONSIGNKBNT. The act of delivering
goods; also the goods themselves so
delivered. Be who consigns the goods
66 CON
is called the consignor, and the person
to whom they are sent is called the
consignee. 2 Steph. Co-m.
CONSISTORY COURTS. Courts held by
diocesan bishops within their several
cathedrals, for the trial of ecclesiastical
causes arising within their respective
dioceses. The bishop’s chancellor, or
his commissary, iR the judge; and from
his sentence an appeal lies to the
archbishop. Cowel; 3 Bl.; 3 Step”.
Com.
CONSOLATO DEL 1lABE. An ancient
collection of the customs of the sea,
including points .relating to maritime
warfare. It was probably compiled in
the latter part of the fourteenth century,
and seems to have been firat published
at Barcelona. TwuI’ Law of .NatiolU.
CONSOLIDATED FUND. A fund formed
by the union, in 1787, of three public
funds, then known 88 the Aggregatp
Fund, the General Fund, and the South
Sea Fund. This Consolidated Fund
has since been combined with t.hat of
Ireland, and forms the Conaolidatea
Fund of the United Kingdom. It con·
stitutes almost the whole’of the ordinary
public income of the United Kingdom
of Great Britain and Ireland, and is
pledged for the payment of the whole
of the interest of the National Debt.
and is also liable to several other
specific charges imposed upon it from
time to time by Act of parliament.
2 Steph. CoNt.
CONSOLIDATING ACTIONS. [CONSOLI-
DA.TION OBDEB.l
CONSOLIDATION. 1. The uniting of two
benefices into one. C/I1DeZ.
2. The word is also used with reference
to the consolidation of two or more
parishes into one union, for the purpose
of the relief and management of the
poor. 3 Steplt. Com.
3. Also, in Scotland, the merging of the
estate of a proprietor of land with that
of his superior, by the latter taking an
” infeftment” or formal assignment of
the interest of his inferior. Bell; 37 .t
38 Vict. c. 94, I. 6.
CONSOLIDATION OF KORTGAGES. A
mortgagee, whether original or by
assignment, who held more than one
mortgage by the same mortgagor, had a
right in equity to compel the mortgagor
to redeem all the mortgages if he sought
to redeem one of them. See as to
consolidation of mortgages, section 17
of the Conveyancing Act, 1881.
Digitized by GoogleCON
COJr80LIDATION ORDER. A rule for
oonsolidating actions, invented by Lord
Mansfield, the effect of which is to
bind the plaintiffs or defendants in
several actions by the verdict in one,
where the questions in dispute, and the
evidence to be adduced, are the same in
all The application for such a rule is
most frequently made in actions against
underwriters upon policies of insurance.
Order XLIX., r. 8, R.S.C., 1883; and
Libel Act, 1888 (01 ‘” 02 Vict. c. 64),
8.5. ‘ “
COJrSOLS. The Consolidated Fund of
the United Kingdom. [CONSOLIDATED
FUND.]
COJrSPmACY. A combination or agree-
ment between two or more persons to
carry into effect a purpose hurtful to
some individual, or to particular classes
of the community, or to the public at
large. See also Conspiracy and Pro-
tection of Property Act, 1870. 4 step!t.
l’um.
COJrST.AlILE. An inferior officer to whom
the’ service of maintaining the peace,
and bringing to justice those by whom
it is infringed, is more immediately
committed.
1. High aM Petty Ct”118table,.
High ctmBtable, may be appointed
at thc courts leet of the franchise or
hundred over which the;r preside, or, in
defanlt of that, by the Justices at their
special sessions. The proper duty of
the high constable seems to be to keep
the peace within the hundred, as the
petty constable did within the pariah
or tIlW1UI!tip. And see 32 &. 33 Vict. c. 47.
67
Petty r.on,tablel were inferior officers
in every town and parish, subordinate
to the high constable. Their prineipal
duty was the preservation of ,the peace,
though they also’ had other particular
duties assigned to them by Act of parlia-
ment, particularly the service of the
summonses and the execution of the I
warrants of the justices of the peace,
relative to the apprehension and com-
mitment of offenders. The county and
borongh police have no~ superseded
them, and (unless under exceptional
circumstances) they have not been
appointed since 24th of March, 1873.
2 Step!t. Ctmt.
2. .l/etrO]llllitan Police.
The Metropolitan Police It’orce is a
body of men established in 1829, by
~tat. 10 Gco. 4, c. H, and is under the
immediate orders of an officer called the
CON
Commissioner of Police of the Metro-
polis, and two assistant commissioners.
The Metropolitan Police District does
not include the City of London, but
otherwise it extends to a radius of about
fifteen miles from Charing Cross.
The Metropolitan Police It’orce is
under the general control of the Home
Secretary.
3. T!le City {If Lo’lld{ln Poli,.,’.
The City of London Police Force was
established in 1839, by stat. 2 &. 3 Vict.
c. 94. The management of the City
Police is placed in the hands of a com-
mi88ioner, appointed by the Lord Mayor,
aldermen, and commons of the City,
with the approval of his Majesty.
4. Bor{l1lgh Polir.e or Co’ll8tab1Ilary.
In boroughs incorporated under the
Municipal Corporations Act (5 ‘” 6
Will. 4, c. 76), a police or constabulary
force is maintained for the preserva-
tion of the peace therein; and this is
appointed by, and is under the superin-
tendence of, the watc!1 cOl1tm,ittee of the
borough, but see as to certain small
boroughs 51 &. 52 Vict. c. 41, s. 39.
2 Step!t. COlli.
5_ Co’U1tty ConBtabwlary.
In each county there is now also
established a c/lunty c/I’IIItabulary, under
the superintendence of a ohief cO’lllfablt;
(q.1!.).
6. Special CMl8fllblr.R.
These are appointed by the magis-
trates to execute warrants on particular
occasions, or to act in aid of the preser-
vation of the peace on special emer-
gencies. This office, i~ the absence of
volunteers, is compulsory. 2 Stepha
Colli.
CONST.AlILEWICX. The place within
which lie the duties of a constable.
CONSTAT. A certificate of what appears
(constat) upon the record tou(lhing the
matter in question. An exemplification
of the enrolment of letters patent under
the great. seal is calle<J a c01U/tat.
CONSTITUENT. 1. One who appoints
an agent j particularly,
2. One who by his vote constitutes or
elects a member of parliRment.
CONSTITUTION is a word generally used
to indicate the form of the supreme
goverl!ment in a state. Where this is
established by a written instrument, as
in the United States, the written instru-
ment is called the Constitution. The
word is also used of the enactments of
the Roman emperors.
F2
Digitized by GoogleCON
CONSTITUTIONAL. In countries having a
written constitution, such as Switzerland
and the United Htates, the word I’onsti-
ttltional means “in conformity with the
constitution,” and the word tt1tctmBtittf.-
tional means “in violation of the con-
stitution” ; the constitution, in all such
countrieR, being the supreme law of the
state. But, as applied to the legislation
of the British parliament, the words in
question are words of vague and inde-
finite import; they are often used as
signifying merely approval or aversion,
as the case may be. Sometimes they are
used with greater precision, to indicate
conformity with. or variation from, some
traditional maxim of legislation, especi-
ally in reference to the oonBtittdion of
the supreme legislative body.
CONSTRUCTION. Interpretation.
CONSTRUCTIVE is an adjective, nearly
synonymous with” implied” ; meaning
that the act or thing to which it refers
does not exist, though it is convenient,
for certain lpgal purposes, to assume
that it does. See the following titles.
CONSTRUCTIVE KURDEB i~ said to be
committed where a person in the course
of committing somejclony, the natural
and probable consequence of which is
not to cause the death of a human
being, does in fact cause such a death.
Considerable doubt has in recent years
been thrown upon the view that this is
murder. See Stlphen, J. in Reg. v.
&rRt!, 16 Cox, 311.
68
CONSDUCTIVE NOTICE. Notice imputed
by construction of law. Whatever is
sufficient to put any person of ordillary
prudence on inquiry, is constructive
notice of everything to which that
inquiry might have led. See 0011-
‘·I’1la7l.eing Al·t, 1882,8. 3.
CONSTRUCTIVE TOTAL LOBB. [TOTAL
Loss.]
CONBTRUCTIVE TREASON. An act raised
by forced and arbitrary constraction to
the crime of treason; as the accroaching,
01′ attempting to exercise, royal power,
was in the 21 Edw. 3, held to be
treason in a knight of Hertfordshire,
who forcibly assaulted and detained one
of the king’s subjects until he paid him
!IOl. 4 Bl. ; 4 Step!I.• 00711.
CONSTRUCTIVE TRUBT is a trust which
is raised by construction of a court of
equity, in order to satisfy the demands
of justice, without 1’l’jl’l’trJICC tl’ tllC
CON
prcllllTTlable intention oj any pa1″tll.
Thus, for instance, a constractive trust
may arise where a person, who is only
joint owner, permanently benefits Bn
estate by repairs or improvements; for,
a lien or trust may arise in his favour,
in respect of the sum he has expended
in such repairs or improvements. And it
thus differs from an implied trust, which
arises from the implinl or presumed
intention of a party. Sm. Man. Eq.
CONSUETUDIlU1UUB. A ritual or book.
containing the rites and forms of divine
offices, or the customs of abbeys Bnd
monasteries. Cowel.
CONSUETUDIlimUB ET BEBVITIIB (cus-
toms and services). An old writ which
lay against a tenant who “deforced”
(or deprived) his lord of the rent or
service due to him. OOfJ.el.
Aholished by stat. 3.1t 4 Will.4,c. 27.
8.36.
CONSUETUDO EST ALTEBALBX (custom
is another law).
CONSUETUDO LOCI OBSEBVAlfDA EST
(the custom of a place is to be observed).
CONSUL. An agent appointed by a state
to reside in a city belonging to another
state, for the purpose of watching over
thc commercial interests of the subjects
of the state from which he has received
his commission. He is not clothed with
the diplomatic character. His appoint-
ment is communicated to the govern-
ment of the state wherein he is
appointed to reside, and its permil!Sion
is required to enable him to enter upon
his functions. This permission is given
by an instrument called an ea:e’luatur.
TwillR’ Law oj Nati01ls, Pt. I. I. 206 ;
Phillim.ore’, Int. Law, Pt. VIL
CONSULTABY RESPONSE. The opinion
of a court of law upon a special case.
CONSULTATION. 1. A writ whereby a
cause, being formerly removed by pro-
hibition, from thp Ecclesiastical Court.
or Court Christian, to the King’s Court,
is returned thither al1:lLin ; for the judges
of the King’s Court, finding the cause to
be wrongfully called from the Court
Christian, upon this CII1I11tltation or
deliberation, decree it to be returned
again. ClI’wel; 3 lJl. It is analogous
to the writ oflJl·ocedI!1Ido. [PROOE-
DENDO.]
2. A meeting of two or more counsel
and the solicitor instructing them for
delibemting or advising.
Digitized by GoogleCO~
COlf8U1UU.TE TENANT BY CURTESY.
The estate or interest of a husbantl as
tenant by the curtesy is said to be
i1tllU’lltlt11late on the dl’ath of his wife, as
opposed to tbe initiate tenancy which
arises on the birth of a child capable of
inheriting the estate. 1 Steph. l;v.m.
[CURTESY.]
COlf8UJDlATION. The completion of a
thing, especially of a marriage by
cohabitation.
CONTAGIOUS DISEASES ACTS. 1.
Animals: For the prevention of the
spread of certain diseases (see the Acts
of 1878, 1890, and 1894).
2. Persons (see 29 Vict. c. 35, and 32 .It
33 Vict. c.96). These Acts aimed at the
prevention of venereal diseases, in-
cluding gonon-ham, and applied to
certain naval and military stations
only. They were repealed by 49 Vict.
c.10.
OOllTAlfGO. The sum paid per share or
per cent. on a scttling day of the Stock
Exchange, for continuing a .. Bull”
account to the next settlement. Fenn’,
CompendiulII. [BULL.]
COllTEJ[pT OF COURT. Anythingwhich
plainly tends to create a disregard of the
authority of courts of justice; as the
open insult or resistance to the judges
who preside there, or disobedience to
their orders. Contempt of court is
punishable by the immediate imprison-
ment of the offender. 4 Steph. Com.
Anything which is a breach of the
privileges of either house of parliament,
according to the law and usage of par-
liament, is a ‘contempt of the High
Court of Parliament, and punishable by
the house by committal. May’B Parl.
Pract.; Halla/m’B CtJ1/.8t. Hist. ch. 16.
COllTENEDNT seemeth to be the free-
hold land which lieth to a man’s
tenement or dwelling-house that is in
his own occupation. Some, however,
take it to signify that which is
necessary for the support of a man
according to his condition of life.
Others understand by it the credit or
reputation which a man hath by reason
of his freehold. Cowel.
COllTBIrrIOUS BUSINESS. Legal busi-
ness where there is a contest, as opposed
to non-contentious business where there
is no such contest: the term is most
frequently used in connection with
obtaining probate or administration.
69 CON
CONTENTIOUS lURISDICTION. That
part of the jurisdiction of a court which
is over matters in dispute, as opposed
to its ‘fIoluntal’Y jurisdiction, which is
merely concerned in doing what no one
opposes. 3 Bl.
CONTINGENCY WlTl[ DOUBLE ASPECT.
An expression sometimes used to denote
the express limitation of one contingent
remainder in substitution for another
contingent remainder. As if land be
given to A. for life, and if he have a
son, then to that son in fee; and if he
have no son, then to B. in fee. 1 SteJ!k.
Cum. [CONTINGENT REJU.INDER.J
CONTINGENT REKAINDEE is an estate
in remainder upon a prior estate,
limited (i.e., marked out in a deed 01′
other written instrument) to take
effect, either to a dubious and un-
certain person, or upon a dubious and
uncertain event. 1 8tepk. Cbm.
Thus, if land be given A., a bachelor,
for life, and after his death to his
eldest son; this remainder to the
eldest son of A. is conl’ingeld, as it is
not certain whether A. will have any
son. So, if land be given to A. for life,
and after his death to B., in case C.
shall then have returned from Rome;
B.’s interest during A.’s life, until C.
shall have l’eturned from Rome, is a
contingent remainder.
A contingent remainder is defined
by }!’earne as a remainder limited to
depend on an event or condition, which
may never happen or be performed, or
which may not happen or be performed
till after the determination of the pre-
ceding estate. Feal’ne on Conti’1lgel/t
RemailUlerll.
A contingent remainder (1) cannot
take effect until the” prior particular
estates” (i.e., the interests for life, or
otherwise, appointed to take effect
before it) have come to an end ; also
(2) it canuot take effect unless the
requisite contingency has happened.
In the former respect it resembles a
vestea relllailuler, and differs from an
eJ!emttm’Y it/terest. In the latter, it
differs from a vestea remaintlel’, and
resembles an e{l)ectttllry itdel’est. It has
the weakness of both these estates, alld
the strength of neither. See, however,
the Contingent Remainders Act, 1877.
[EXECUTORY INTEREST; REMAINDER;
VESTED REMAINDER.]
In many cases which may be con-
ceived, the distinction between a
vested and a contingent remainder is
one of extreme technicality.
Digitized by GoogleCON
CONTINUANCE. An adjournment of the
proceedings in an action; or, more
strictly, the entry on the record ex-
pressing the ground of the adjournment,
and appointing the parties to reappear
at a given day. Hence, a plea puis
da1’reilt l’OntiIlUfl1WI! signifies an aUega-
tion of new matter of defence which
has arisen lIilll’f’ tlte lUBt udjlntrn-
ment or contiltuanl’e. Continuances are
not now entered on the record or other-
wise. 3 Stepha COII/.
CONTINUANCE. NOTICE OF. Where
a plaintiff could not be ready for trial
on a day for “,hich notice had been
given, he might give notice of con-
tinuance and contiJlue his notice to any
future sitting. It is now obsolete;
notice of trial not being given now for
any particular sittings.
CONTINUAlmO. In actions for trespasses
of a permanent nature. where the
injury is continually renewed, the
plaintiff’s declaration may allege the
injury to have been committed by
continuatill1t from one given day to
another. which is called laying the
action with a continuando. and the
plaintiff shall not be compelled to
bring separate actions for every day’s
separate offence.
CONTINUATION CLAUSE in a marine
insurance means a clause whereby the
period covered by a policy is extended
beyond 12 months. in cases where the
vessel insured is at sea at the expiration
of such 12 months. See B. 11 of
Finance Act, 1901.
CONTRA BONOS M:ORES (against good
morals).
CONTRA FOBJUJ[ COL L A T ION IS
(against the form of the gift) was an
old writ which lay where a man gave
lands to a religious house, for the
perpetual performance of some divine
service, and the abbot or his successor
wrongfully alienated the lands; then
the donor or his heirs had this writ to
recover the lands•.
CONTRA FOBJU.M: FEOFFAlDNTI
(against the form of the feoffment).
An old writ that lay for the heir of a
tenant who, having entered into
possession of certain lands or tene-
ments, under a charter of “feoffment”
from his lord, on the condition of per-
forming certain sel’Vices, was after-
wards “distrained” (i.e., had his goods
70 CON
seized) for the non – performance· of
services not required by the charter of
feoffment. [FEOFFMENT.J .
CONTRA. FORllAJ[ STATtJTI. [AGAINST
THE FORM OF THE STATUTE..]
CONTRA PACEM:. “Against the peace
of our lord the king, his crown and.
dignity”; a form formerly necessary in
indictments for offences against the com-
mon law; the form is still usual but
the omission of these words does not
now render an indictment bad. 14 4′ 15
Viet. c. 100, B. 24 ; 4 Step”‘. Com.COM 68. CON
conBOKISE. An adjustment of claims
in dispute by mutual concession, either
without resort to legal proceedings, or
on the condition of abandoning such
proceedings if already commenced.
COnTROLLER. 1. One who observes
ann examines the accounts of the
collectors of public money. 2 Steph.
Com.
2. The comptroller in bankruptcy was an
officer appointed under the repealed
Bankruptcy Aet, 1869; the trustee in
any bankruptcy being required to for-
ward the statement of his accounts,
after they had been audited by the
committee of inspection. 2 Steph. Oom.
S. An officer of the royal household.
4. The comptroller of the hanaper was
an officer of the Court of Chancery,
whose office was abolished in 1842 by
5 ole 6 Vict. c. 103, s. 1.
ConlJLsolty PROT.
AU~HORITIES.]
[PILOTAGE
COJ(PUBGATOBS. The twelve persons
who, when a parson was triJld and
made oath of his own innocence, were
called upon to swear that they believed
he spoke the truth. Supposed to be
the origin of trial by jury. 4 Steplt.
Colli. [BENEFIT OF CLERGY.]
COJIP11TO. An ancient writ to compel a
bailiff, receiver or accountant to yield
up his accounts. Also lay against
guardians.
CONCEALERS. Persons who were used
to find out lands which were kept
privily from the king by persons
having no title thereto.
CONCEALDNT, i.Il., (1) 811ppre8m ‘/Jeri
to the injury or prejudice of another:
if active and fraudulent it is ground for
rescinding a contract. (2) Of birth is a
misdemeanor. See 24 <$’ 25 Viet. c. 100,
B. 60. (3) Of documents of title to
lands or testamentary instruments is
felony. See 24 .t 25 Vict. c. 96,
11.28, 29, and 25 & 26 Viet. c. 67, s. 44.
CONCESSIT SOLVEBE (he granted and
agreed to pay). An action of debt
upon a simple contract. It lies by
custom in the Mayor’s Court, London,
and the Bristol City Court.
CON~ILIATION. A settling of disputes
Without litigation. See Oonciliation
Act, 1896, 59 or 60 Vict. c. 30.
CONCLUDED is often used in the same
sense as mopped. [CONCLUSION; Es-
TOPPEL.]
CONCLUSION is when a man, by his own
act upon record, hath charged himself
with a duty, or other thing. In this
sense it is tantamount to elfoppel.
rESTOPPEL. ] And this word l’oncluaion
is taken in another sense, as for the end
or later part of any declaration, plea
in bar, replication, conveyance, etc.
00101’1.
CONCORD. 1. Part of the process by
which a fine of lands was levied, prior
to the abolition of fines by 3 ole 4.
Will. 4, c. 74. It was the agree-
ment by which the pretended defendant
acknowledged that the lands in question
were the right of the complainant. 2
Bl.; 1 Step”. 00111. [FINE,I.]
2. A compromise
CONCUBBENT lUBISDICTIONS. The
jurisdiction of several different tribu-
nals authorised to deal with the same
subject-matter at the choice of the
suitor.
CONCUBBENT WRITS. Duplicate orig-
inals, or several writs running at the
same time for the same purpose, for
service on a person, when it IS not known
where he is to be found; or fol’ service
on several persons. as when there are
several defendants in an action. R. S. C.
1883, Ord. VI.
CONDITION. A restraint annexed to a
thing so that by the non-performance
.the party to it shall receive prejudice
and loss. and by the performance com-
modity 01′ advantage: it is also defined
to be what is referred to an uncertain
chance which mayor may not happen.
The following are the most important
kinds of condition: (I) A condition in
a deed, or express: a condition in law
or implied. (2) Precedent or subsequent.
1 Steph. COlli.
CONDITIONAL FEE. otherwise called a
fee simple conditional, properly com-
prises every estate in fee simple granted
upon condition; but the term is
usually understood to refer to that
particular species called a “conditional
fee” at the common law, which is an
estate restrained in its form of dona-
tion to B01lle pa1·ticula1· ‘,eira (exclusive
of others) : as, to the heirs of a man’s
body, or to the heirs male of his body;
which the judges of former days
construed, not as an estate descendible
Digitized by GoogleCON .64
ClONDITIOlfAL J’EE-conti nuetl.
to some particular heirs, but an estate
upon condition that the land was to
revert to the donor, if the donee had
no heirs of his body. This construction
()f gifts of lands was put a stop to by
~. I of the Statute of Westminster the
Second, commonly called the statute
De donis conditionaUblls, in the year
1285, which provided that henceforth
the will of the donor should be observed
.recuntlum fm’lI/am ion carta doni ei/!-
p1’~8a11l (according to the form expressed
in the charter of gift). 2 Bl.; 1 Stepl~.
Com. [DE DONIS; ESTATE.l
oCONDITIOlfAL LIJ[ITATIOlf is a phrase
used spccially in the two following I
ways:-
1. Of an cstate or inl(,l’cst in bnd so
cxprcssly dcfinccl anti limitcrj by the
words of its “I’mlion that it eannot
endure for any longcr timc than t ill a
particular contingcncy happpns. 1
Sll’pll. (,’0/11.. That j” a pI’r.,rllt inlrrrst,
to be ,Ii ,’cHlcd on a/II/lire c·ontingcncy.
2. Of a futurc, usc 01′ inlu’cst limited
to take cffectupon agiv(‘nconlin~(‘ney,
in dcrogation of a prceeding eslate 01′
interest. This is likewise called a
,,’tiftillfl or Xl’l:Ollilm’1/ 11SC, and also an
riuc1dory illtrrrct. 11 is a fill ure estate
to cOllie inlo posses~ion upon a given
-contingcnr·y. 1 Sfl,}}li. (‘0111. [ESTATE;
EXECUTORY INTBRE!<T.]
Thus, if land he granlpd to the use of
A. and his heirs until B. I’ctUI’llS from
Rome. RIlII then to thc usc of Rand his
heirs. A.’s “Hi ai e is a c:onditionallimita-
lion of the lirst sOI-l.anel B:~ estale is a
condit iOlla I limiLillon of the second sort
above menl ioned.
(:OlfDITIOlfS OJ’ SALE. The terms stated
in WI it in~, upon whieh Rn csl.ale or
intl’1’cst is to be sold bv public auclion.
The Convcyaneiug A(‘t.. ItlSl, applies
cert ain eondil ions of sale to all con-
tracls, unless otherwise expressly stated.
COlfDITIOlfS PRECEDElfT AND SUB-
SEQUENT. A l’ond!l ion prl'(‘l’lll’lIt, in
a eonve,van”e 01′ di~p08it.ion (,f an estate,
is a coudil ion which must happen or be
performed bcl’ol’e the cslaLe 01′ interest
ean vest. A “ondition 87tlJxr,/lIcnt is a
condition of t he failure or non-per-
formance of which an estate already
vested may be defeated. 2 Bl.;
1 Stepl~. COlli.
i:ONDOlfATIOlf. A pardoning or remis-
si.on, especially of conjugal offence.
CON
The immediate e:ffect of condonation is
to bar the party condoning of his or
her remedy for the offence in question.
2 Step”‘. Oom.
COlfDUCT J[ODY. Money for the pay-
ment of the reasonable expenses of a
witness at a trial.
CONDUCTIO. (Roman law.) A hiring
(q.r.).
COllEY. A rabbit. See GAME.
COlQ’EDERACY. A combination of two
or more persons to commit some un-
lawful act or to do some damage or
injury to another. [CONSPIRACY.]
COlQ’ERElfCE. 1. In parliamentary
practice, is a mode of communicatinK
important matters by one house of
parliament to the other by means of
deputations of their own members.
May’s Parl. Pract; 2 Step”‘. Com.
2. A meeting between a counsel and
solicitor to advise on their client’s
cause.
COlfJ’ESSIlfG ERROR. The consent bv
a party in whose favour judgment hi’!
been given that such judgment shall
be reversed, on allegation by the
opposite party of “error” in fact 01′
in law. [ERROR.]
COlfJ’ESSIOlf AND AVOIDAlfCE is a
plea in bar whereby a party confuses
the facts as stated by his adversary,
but alleges some new matter by WH_y of
a’/’oitling the legal effect claimed for
them. As, if a man be sued for an
assault, he may admit the assault, but
plead that he committed it in self-
defence. 8 Step”‘. Com.
COlQ’ESSIOlf BY CRIJ[IlfAL may be in
open court when called upon to ,Elead
to the indictment or elsewhere. LVOL-
UNTARY CONFESSION.]
COlQ’ESSIOlf, lUDGDlfT BY. See
COGNOVIT ACTIONEM.
COlQ’ESSIOlf OJ’ DD’ElfCE. Where
defendant alleges a ground of defence
arising since the commencement of the
action, the plaintiff may deliver con-
fession of such defence and sign judg-
ment for his costs up to the time of
such pleading unless otherwise ordered.
Ii. S. C. 1883, Ortl. XXIV. ,.. 8.
COlfJ’ESSIOlf OJ’ PLEA. Same as CON-
lI’ESSION 011′ DEFENCjt (g.”.’.).
Digitized by GoogleCON
CONFESSO, BILL TAXElf PBO. [PRO
CONFESSO.]
CODmENTIAL COHlttUMCATION.
[PRIVILEGED COMMUNICATION.l
CODIlUfATIO CHABTABUJ[ (confirma-
tion of the charters). A statute
enacted 25 Edw. 1, A.D. 1297, confirm-
ing and making some additions to
Magna Charta (g. v.). 1 &eph. Com.;
2 Steph. Com.
CODIlUfATION_ 1. A conveyance of ali
estate or right, whereby a voidable
estate is made sure and unavoidable or
a particular estate is increased. 1
Steplt. Cllm.
2. The ratification by the archbishop
of the election of a bishop by dean and
chapter.
3. Confirmation is also the Scotch term
corresponding to probat8 and letterll
/If adminilltration in England.
CODISCATE. To appropriate to the
revenue of the Crown.
COlO’LICT OF LAWS. The discordance
betweeil the laws of one country and
another, as applied to the same subject-
matter; as, for instance, in the case of
a contract made in one country and
intended to be executed in another.
See Story’s Clltljl-iet of LaWII; IVest-
lake’ll P,ivate international Law;
Dicey’s Conflict lif Laws.
CODOBJ[rrY, BILL OF. A bill filed by
an executor or administrator against
the creditors of the deceased, for the
adjustment of their claims. where the
affairs of the testator or intestate are
found to be so much involved that it
would not be safe to administer the
estate, except under the direction of
the Court of Chancery: a final decree
was then issued by the court, to which
all parties were bound to cOttfol·m.
CONFUSION. A word in Scotch and
French law, signifying the merger or
extinguishment of a debt by the debtor
succeeding to the property of his
creditor, or -vice versii. Bell.
CODUSION OF GOODS is where the
goods of two persons are so intermixed
that the several portions can be no
longer distinguished; as if the money.
corn or hay of one man be intermixed
with tha • of another. If the inter-
mixture be by consent, it is supposed the
proprietors have an interest in common
in proportion to their shares, but if one
L.D.
65 CON
man wilfully intermixes his property
with another’s without his consent, the
law gives the entire property to him
whose right is invaded and endeavoured
to be rendered uncertain without his
consent. 2 Bl.; 2 &eph. Com.
CONGE D’ACCOBDD signifies leave to
accord or agree for the purpose of
levying a fine, prescribed by stat. 18
Edw. 1. Oowel; 2 Bl. ; 1 &eplt. Com.
[CONCORD; FINE, 1.]
CONGE D’ELmE. The king’s per-
mission to a dean and chapter to choose
a bishop. The dean and chapter are
bound to elect such person as the
Crowi!. shall recommend (whose name
is given in the letter missive which ac-
companies the c07l.g4 d’elire), on pain of
incurring the penalties of a prfBmunire.
1 Bl. ; 2 Steph. Com.
CONGEABLE. A thing lawfully done, or
done with leave. Cowel.
CONIOINTS. Persons married to each
other.
CON1UGAL BIGJITS, SUIT FOB RESTI-
TUTION 01′, is a suit by a husband to
compel his wife to live with him, or by
a wife to compel the husband to take
her back. 2 Stepll. COin.
CONIUBATION. A plot or compact made
by men to do any public harm. In ollr
common law it is specially used for such
as have personal conference with the
devil. or evil spirits, to know any secret,
or to effect any purpose. 5 Eli:;;. c. 16 ;
Cowel. The laws against conjuration
and witchcraft were repealed in 1736,
by 9 Geo. 2, c. 5. 4, Bl.; 4, Steph.
Oom..
CODIVANCE signifies shutting of the
eye. It is used especially with
reference to a husband tacitly en-
couraging his wife to commit adultery.
in order that he may obtain a divorce.
Such connivance, if established, will
deprive the husband of his remedy.
2 Steph. Com.; 20 .t 21 Viet. c. 85.
CONSANGUINEUS FRATER. A brother
by the father’s side, in contradistinction
tofrater uterimtB, the son of the same
mother.
. CONSANGUINITY. Relationship by blood,
as opposed to o,t/in:ity, which is relation-
ship by marriage. 2 &eph. Oom.
AFFINITY.j
F
Digitized by GoogleCON
CONSCIElfCE, COURTS OF. Local courts
for the recovery of small debts, formed
before the passing of the County Courts
Act, 1846 (9 & 10 Vict. c. 95), in various
parts of the kingdom, by special Acts
passed for that purpose. They are by
that Act for the most part abolished.
3 Steph. a.m. .
CONSDT presupposes a physical power,
a mental power and a free and serious
use of them, and if it be obtained by
any fraud or undue influence it is not
binding.
CONSEQUENTIAL DAJU.GE OR nUURY
is damage or injury arising by C1I1I8e-
quence or collaterally to one man, from
the culpable act or omission of another.
3 Steph.. 00111.
CONSERVATOR OF TlIE PEACE is he
that hath an especial charge, by virtue
of his office, to see the king’s peace
kept. Some cons03rvators of the peace
are so rirtute I!fficii, some are ‘specially
appointed, and are now called justices
of the peace. 2 &eph. Com.
CONSIDERATION. A compensation,
matter of inducement, or quid pro
‘litO, for something promised or done.
Valuable consideration is necessary to
make binding every contract not under
seal. It need not be adequate but must
be of some value in the eye of the law
and must be legal: it must also be
present or future, it must not be past.
2 &eph. Co-“t.
There is also a consideration called
the consideration of “blood;” that is,
natural love and affection for a near
relation. This is, for some purposes,
deemed a good consideration; but it is
not held to be a oralltable consideration,
so as to support an action on a simple
contract. It is sometimes called me,.i-
torioU8 consideration. 2 Steph. Co-llt.;
A 118011 on ContracU. .
CONSIDDATUJ[ BST PER CUBIAJ[ (it
is considered and adjudged by the
court). The formal and ordinary com-
mencement of a judgment.
CONSIGNATION, in Roman and Scottish
law, is the payment of money by a debtor
into the hands of a party other than
the creditor, either because the creditor
refuses to accept it, or by prior special
agreements between debtor and creditor.
It includes the depositing of money with
a stakeholder. Bell; Paterll1l1l.
CONSIGNKBNT. The act of delivering
goods; also the goods themselves so
delivered. Be who consigns the goods
66 CON
is called the consignor, and the person
to whom they are sent is called the
consignee. 2 Steph. Co-m.
CONSISTORY COURTS. Courts held by
diocesan bishops within their several
cathedrals, for the trial of ecclesiastical
causes arising within their respective
dioceses. The bishop’s chancellor, or
his commissary, iR the judge; and from
his sentence an appeal lies to the
archbishop. Cowel; 3 Bl.; 3 Step”.
Com.
CONSOLATO DEL 1lABE. An ancient
collection of the customs of the sea,
including points .relating to maritime
warfare. It was probably compiled in
the latter part of the fourteenth century,
and seems to have been firat published
at Barcelona. TwuI’ Law of .NatiolU.
CONSOLIDATED FUND. A fund formed
by the union, in 1787, of three public
funds, then known 88 the Aggregatp
Fund, the General Fund, and the South
Sea Fund. This Consolidated Fund
has since been combined with t.hat of
Ireland, and forms the Conaolidatea
Fund of the United Kingdom. It con·
stitutes almost the whole’of the ordinary
public income of the United Kingdom
of Great Britain and Ireland, and is
pledged for the payment of the whole
of the interest of the National Debt.
and is also liable to several other
specific charges imposed upon it from
time to time by Act of parliament.
2 Steph. CoNt.
CONSOLIDATING ACTIONS. [CONSOLI-
DA.TION OBDEB.l
CONSOLIDATION. 1. The uniting of two
benefices into one. C/I1DeZ.
2. The word is also used with reference
to the consolidation of two or more
parishes into one union, for the purpose
of the relief and management of the
poor. 3 Steplt. Com.
3. Also, in Scotland, the merging of the
estate of a proprietor of land with that
of his superior, by the latter taking an
” infeftment” or formal assignment of
the interest of his inferior. Bell; 37 .t
38 Vict. c. 94, I. 6.
CONSOLIDATION OF KORTGAGES. A
mortgagee, whether original or by
assignment, who held more than one
mortgage by the same mortgagor, had a
right in equity to compel the mortgagor
to redeem all the mortgages if he sought
to redeem one of them. See as to
consolidation of mortgages, section 17
of the Conveyancing Act, 1881.
Digitized by GoogleCON
COJr80LIDATION ORDER. A rule for
oonsolidating actions, invented by Lord
Mansfield, the effect of which is to
bind the plaintiffs or defendants in
several actions by the verdict in one,
where the questions in dispute, and the
evidence to be adduced, are the same in
all The application for such a rule is
most frequently made in actions against
underwriters upon policies of insurance.
Order XLIX., r. 8, R.S.C., 1883; and
Libel Act, 1888 (01 ‘” 02 Vict. c. 64),
8.5. ‘ “
COJrSOLS. The Consolidated Fund of
the United Kingdom. [CONSOLIDATED
FUND.]
COJrSPmACY. A combination or agree-
ment between two or more persons to
carry into effect a purpose hurtful to
some individual, or to particular classes
of the community, or to the public at
large. See also Conspiracy and Pro-
tection of Property Act, 1870. 4 step!t.
l’um.
COJrST.AlILE. An inferior officer to whom
the’ service of maintaining the peace,
and bringing to justice those by whom
it is infringed, is more immediately
committed.
1. High aM Petty Ct”118table,.
High ctmBtable, may be appointed
at thc courts leet of the franchise or
hundred over which the;r preside, or, in
defanlt of that, by the Justices at their
special sessions. The proper duty of
the high constable seems to be to keep
the peace within the hundred, as the
petty constable did within the pariah
or tIlW1UI!tip. And see 32 &. 33 Vict. c. 47.
67
Petty r.on,tablel were inferior officers
in every town and parish, subordinate
to the high constable. Their prineipal
duty was the preservation of ,the peace,
though they also’ had other particular
duties assigned to them by Act of parlia-
ment, particularly the service of the
summonses and the execution of the I
warrants of the justices of the peace,
relative to the apprehension and com-
mitment of offenders. The county and
borongh police have no~ superseded
them, and (unless under exceptional
circumstances) they have not been
appointed since 24th of March, 1873.
2 Step!t. Ctmt.
2. .l/etrO]llllitan Police.
The Metropolitan Police It’orce is a
body of men established in 1829, by
~tat. 10 Gco. 4, c. H, and is under the
immediate orders of an officer called the
CON
Commissioner of Police of the Metro-
polis, and two assistant commissioners.
The Metropolitan Police District does
not include the City of London, but
otherwise it extends to a radius of about
fifteen miles from Charing Cross.
The Metropolitan Police It’orce is
under the general control of the Home
Secretary.
3. T!le City {If Lo’lld{ln Poli,.,’.
The City of London Police Force was
established in 1839, by stat. 2 &. 3 Vict.
c. 94. The management of the City
Police is placed in the hands of a com-
mi88ioner, appointed by the Lord Mayor,
aldermen, and commons of the City,
with the approval of his Majesty.
4. Bor{l1lgh Polir.e or Co’ll8tab1Ilary.
In boroughs incorporated under the
Municipal Corporations Act (5 ‘” 6
Will. 4, c. 76), a police or constabulary
force is maintained for the preserva-
tion of the peace therein; and this is
appointed by, and is under the superin-
tendence of, the watc!1 cOl1tm,ittee of the
borough, but see as to certain small
boroughs 51 &. 52 Vict. c. 41, s. 39.
2 Step!t. COlli.
5_ Co’U1tty ConBtabwlary.
In each county there is now also
established a c/lunty c/I’IIItabulary, under
the superintendence of a ohief cO’lllfablt;
(q.1!.).
6. Special CMl8fllblr.R.
These are appointed by the magis-
trates to execute warrants on particular
occasions, or to act in aid of the preser-
vation of the peace on special emer-
gencies. This office, i~ the absence of
volunteers, is compulsory. 2 Stepha
Colli.
CONST.AlILEWICX. The place within
which lie the duties of a constable.
CONSTAT. A certificate of what appears
(constat) upon the record tou(lhing the
matter in question. An exemplification
of the enrolment of letters patent under
the great. seal is calle<J a c01U/tat.
CONSTITUENT. 1. One who appoints
an agent j particularly,
2. One who by his vote constitutes or
elects a member of parliRment.
CONSTITUTION is a word generally used
to indicate the form of the supreme
goverl!ment in a state. Where this is
established by a written instrument, as
in the United States, the written instru-
ment is called the Constitution. The
word is also used of the enactments of
the Roman emperors.
F2
Digitized by GoogleCON
CONSTITUTIONAL. In countries having a
written constitution, such as Switzerland
and the United Htates, the word I’onsti-
ttltional means “in conformity with the
constitution,” and the word tt1tctmBtittf.-
tional means “in violation of the con-
stitution” ; the constitution, in all such
countrieR, being the supreme law of the
state. But, as applied to the legislation
of the British parliament, the words in
question are words of vague and inde-
finite import; they are often used as
signifying merely approval or aversion,
as the case may be. Sometimes they are
used with greater precision, to indicate
conformity with. or variation from, some
traditional maxim of legislation, especi-
ally in reference to the oonBtittdion of
the supreme legislative body.
CONSTRUCTION. Interpretation.
CONSTRUCTIVE is an adjective, nearly
synonymous with” implied” ; meaning
that the act or thing to which it refers
does not exist, though it is convenient,
for certain lpgal purposes, to assume
that it does. See the following titles.
CONSTRUCTIVE KURDEB i~ said to be
committed where a person in the course
of committing somejclony, the natural
and probable consequence of which is
not to cause the death of a human
being, does in fact cause such a death.
Considerable doubt has in recent years
been thrown upon the view that this is
murder. See Stlphen, J. in Reg. v.
&rRt!, 16 Cox, 311.
68
CONSDUCTIVE NOTICE. Notice imputed
by construction of law. Whatever is
sufficient to put any person of ordillary
prudence on inquiry, is constructive
notice of everything to which that
inquiry might have led. See 0011-
‘·I’1la7l.eing Al·t, 1882,8. 3.
CONSTRUCTIVE TOTAL LOBB. [TOTAL
Loss.]
CONBTRUCTIVE TREASON. An act raised
by forced and arbitrary constraction to
the crime of treason; as the accroaching,
01′ attempting to exercise, royal power,
was in the 21 Edw. 3, held to be
treason in a knight of Hertfordshire,
who forcibly assaulted and detained one
of the king’s subjects until he paid him
!IOl. 4 Bl. ; 4 Step!I.• 00711.
CONSTRUCTIVE TRUBT is a trust which
is raised by construction of a court of
equity, in order to satisfy the demands
of justice, without 1’l’jl’l’trJICC tl’ tllC
CON
prcllllTTlable intention oj any pa1″tll.
Thus, for instance, a constractive trust
may arise where a person, who is only
joint owner, permanently benefits Bn
estate by repairs or improvements; for,
a lien or trust may arise in his favour,
in respect of the sum he has expended
in such repairs or improvements. And it
thus differs from an implied trust, which
arises from the implinl or presumed
intention of a party. Sm. Man. Eq.
CONSUETUDIlU1UUB. A ritual or book.
containing the rites and forms of divine
offices, or the customs of abbeys Bnd
monasteries. Cowel.
CONSUETUDIlimUB ET BEBVITIIB (cus-
toms and services). An old writ which
lay against a tenant who “deforced”
(or deprived) his lord of the rent or
service due to him. OOfJ.el.
Aholished by stat. 3.1t 4 Will.4,c. 27.
8.36.
CONSUETUDO EST ALTEBALBX (custom
is another law).
CONSUETUDO LOCI OBSEBVAlfDA EST
(the custom of a place is to be observed).
CONSUL. An agent appointed by a state
to reside in a city belonging to another
state, for the purpose of watching over
thc commercial interests of the subjects
of the state from which he has received
his commission. He is not clothed with
the diplomatic character. His appoint-
ment is communicated to the govern-
ment of the state wherein he is
appointed to reside, and its permil!Sion
is required to enable him to enter upon
his functions. This permission is given
by an instrument called an ea:e’luatur.
TwillR’ Law oj Nati01ls, Pt. I. I. 206 ;
Phillim.ore’, Int. Law, Pt. VIL
CONSULTABY RESPONSE. The opinion
of a court of law upon a special case.
CONSULTATION. 1. A writ whereby a
cause, being formerly removed by pro-
hibition, from thp Ecclesiastical Court.
or Court Christian, to the King’s Court,
is returned thither al1:lLin ; for the judges
of the King’s Court, finding the cause to
be wrongfully called from the Court
Christian, upon this CII1I11tltation or
deliberation, decree it to be returned
again. ClI’wel; 3 lJl. It is analogous
to the writ oflJl·ocedI!1Ido. [PROOE-
DENDO.]
2. A meeting of two or more counsel
and the solicitor instructing them for
delibemting or advising.
Digitized by GoogleCO~
COlf8U1UU.TE TENANT BY CURTESY.
The estate or interest of a husbantl as
tenant by the curtesy is said to be
i1tllU’lltlt11late on the dl’ath of his wife, as
opposed to tbe initiate tenancy which
arises on the birth of a child capable of
inheriting the estate. 1 Steph. l;v.m.
[CURTESY.]
COlf8UJDlATION. The completion of a
thing, especially of a marriage by
cohabitation.
CONTAGIOUS DISEASES ACTS. 1.
Animals: For the prevention of the
spread of certain diseases (see the Acts
of 1878, 1890, and 1894).
2. Persons (see 29 Vict. c. 35, and 32 .It
33 Vict. c.96). These Acts aimed at the
prevention of venereal diseases, in-
cluding gonon-ham, and applied to
certain naval and military stations
only. They were repealed by 49 Vict.
c.10.
OOllTAlfGO. The sum paid per share or
per cent. on a scttling day of the Stock
Exchange, for continuing a .. Bull”
account to the next settlement. Fenn’,
CompendiulII. [BULL.]
COllTEJ[pT OF COURT. Anythingwhich
plainly tends to create a disregard of the
authority of courts of justice; as the
open insult or resistance to the judges
who preside there, or disobedience to
their orders. Contempt of court is
punishable by the immediate imprison-
ment of the offender. 4 Steph. Com.
Anything which is a breach of the
privileges of either house of parliament,
according to the law and usage of par-
liament, is a ‘contempt of the High
Court of Parliament, and punishable by
the house by committal. May’B Parl.
Pract.; Halla/m’B CtJ1/.8t. Hist. ch. 16.
COllTENEDNT seemeth to be the free-
hold land which lieth to a man’s
tenement or dwelling-house that is in
his own occupation. Some, however,
take it to signify that which is
necessary for the support of a man
according to his condition of life.
Others understand by it the credit or
reputation which a man hath by reason
of his freehold. Cowel.
COllTBIrrIOUS BUSINESS. Legal busi-
ness where there is a contest, as opposed
to non-contentious business where there
is no such contest: the term is most
frequently used in connection with
obtaining probate or administration.
69 CON
CONTENTIOUS lURISDICTION. That
part of the jurisdiction of a court which
is over matters in dispute, as opposed
to its ‘fIoluntal’Y jurisdiction, which is
merely concerned in doing what no one
opposes. 3 Bl.
CONTINGENCY WlTl[ DOUBLE ASPECT.
An expression sometimes used to denote
the express limitation of one contingent
remainder in substitution for another
contingent remainder. As if land be
given to A. for life, and if he have a
son, then to that son in fee; and if he
have no son, then to B. in fee. 1 SteJ!k.
Cum. [CONTINGENT REJU.INDER.J
CONTINGENT REKAINDEE is an estate
in remainder upon a prior estate,
limited (i.e., marked out in a deed 01′
other written instrument) to take
effect, either to a dubious and un-
certain person, or upon a dubious and
uncertain event. 1 8tepk. Cbm.
Thus, if land be given A., a bachelor,
for life, and after his death to his
eldest son; this remainder to the
eldest son of A. is conl’ingeld, as it is
not certain whether A. will have any
son. So, if land be given to A. for life,
and after his death to B., in case C.
shall then have returned from Rome;
B.’s interest during A.’s life, until C.
shall have l’eturned from Rome, is a
contingent remainder.
A contingent remainder is defined
by }!’earne as a remainder limited to
depend on an event or condition, which
may never happen or be performed, or
which may not happen or be performed
till after the determination of the pre-
ceding estate. Feal’ne on Conti’1lgel/t
RemailUlerll.
A contingent remainder (1) cannot
take effect until the” prior particular
estates” (i.e., the interests for life, or
otherwise, appointed to take effect
before it) have come to an end ; also
(2) it canuot take effect unless the
requisite contingency has happened.
In the former respect it resembles a
vestea relllailuler, and differs from an
eJ!emttm’Y it/terest. In the latter, it
differs from a vestea remaintlel’, and
resembles an e{l)ectttllry itdel’est. It has
the weakness of both these estates, alld
the strength of neither. See, however,
the Contingent Remainders Act, 1877.
[EXECUTORY INTEREST; REMAINDER;
VESTED REMAINDER.]
In many cases which may be con-
ceived, the distinction between a
vested and a contingent remainder is
one of extreme technicality.
Digitized by GoogleCON
CONTINUANCE. An adjournment of the
proceedings in an action; or, more
strictly, the entry on the record ex-
pressing the ground of the adjournment,
and appointing the parties to reappear
at a given day. Hence, a plea puis
da1’reilt l’OntiIlUfl1WI! signifies an aUega-
tion of new matter of defence which
has arisen lIilll’f’ tlte lUBt udjlntrn-
ment or contiltuanl’e. Continuances are
not now entered on the record or other-
wise. 3 Stepha COII/.
CONTINUANCE. NOTICE OF. Where
a plaintiff could not be ready for trial
on a day for “,hich notice had been
given, he might give notice of con-
tinuance and contiJlue his notice to any
future sitting. It is now obsolete;
notice of trial not being given now for
any particular sittings.
CONTINUAlmO. In actions for trespasses
of a permanent nature. where the
injury is continually renewed, the
plaintiff’s declaration may allege the
injury to have been committed by
continuatill1t from one given day to
another. which is called laying the
action with a continuando. and the
plaintiff shall not be compelled to
bring separate actions for every day’s
separate offence.
CONTINUATION CLAUSE in a marine
insurance means a clause whereby the
period covered by a policy is extended
beyond 12 months. in cases where the
vessel insured is at sea at the expiration
of such 12 months. See B. 11 of
Finance Act, 1901.
CONTRA BONOS M:ORES (against good
morals).
CONTRA FOBJUJ[ COL L A T ION IS
(against the form of the gift) was an
old writ which lay where a man gave
lands to a religious house, for the
perpetual performance of some divine
service, and the abbot or his successor
wrongfully alienated the lands; then
the donor or his heirs had this writ to
recover the lands•.
CONTRA FOBJU.M: FEOFFAlDNTI
(against the form of the feoffment).
An old writ that lay for the heir of a
tenant who, having entered into
possession of certain lands or tene-
ments, under a charter of “feoffment”
from his lord, on the condition of per-
forming certain sel’Vices, was after-
wards “distrained” (i.e., had his goods
70 CON
seized) for the non – performance· of
services not required by the charter of
feoffment. [FEOFFMENT.J .
CONTRA. FORllAJ[ STATtJTI. [AGAINST
THE FORM OF THE STATUTE..]
CONTRA PACEM:. “Against the peace
of our lord the king, his crown and.
dignity”; a form formerly necessary in
indictments for offences against the com-
mon law; the form is still usual but
the omission of these words does not
now render an indictment bad. 14 4′ 15
Viet. c. 100, B. 24 ; 4 Step”‘. Com.
COM 68. CON
conBOKISE. An adjustment of claims
in dispute by mutual concession, either
without resort to legal proceedings, or
on the condition of abandoning such
proceedings if already commenced.
COnTROLLER. 1. One who observes
ann examines the accounts of the
collectors of public money. 2 Steph.
Com.
2. The comptroller in bankruptcy was an
officer appointed under the repealed
Bankruptcy Aet, 1869; the trustee in
any bankruptcy being required to for-
ward the statement of his accounts,
after they had been audited by the
committee of inspection. 2 Steph. Oom.
S. An officer of the royal household.
4. The comptroller of the hanaper was
an officer of the Court of Chancery,
whose office was abolished in 1842 by
5 ole 6 Vict. c. 103, s. 1.
ConlJLsolty PROT.
AU~HORITIES.]
[PILOTAGE
COJ(PUBGATOBS. The twelve persons
who, when a parson was triJld and
made oath of his own innocence, were
called upon to swear that they believed
he spoke the truth. Supposed to be
the origin of trial by jury. 4 Steplt.
Colli. [BENEFIT OF CLERGY.]
COJIP11TO. An ancient writ to compel a
bailiff, receiver or accountant to yield
up his accounts. Also lay against
guardians.
CONCEALERS. Persons who were used
to find out lands which were kept
privily from the king by persons
having no title thereto.
CONCEALDNT, i.Il., (1) 811ppre8m ‘/Jeri
to the injury or prejudice of another:
if active and fraudulent it is ground for
rescinding a contract. (2) Of birth is a
misdemeanor. See 24 <$’ 25 Viet. c. 100,
B. 60. (3) Of documents of title to
lands or testamentary instruments is
felony. See 24 .t 25 Vict. c. 96,
11.28, 29, and 25 & 26 Viet. c. 67, s. 44.
CONCESSIT SOLVEBE (he granted and
agreed to pay). An action of debt
upon a simple contract. It lies by
custom in the Mayor’s Court, London,
and the Bristol City Court.
CON~ILIATION. A settling of disputes
Without litigation. See Oonciliation
Act, 1896, 59 or 60 Vict. c. 30.
CONCLUDED is often used in the same
sense as mopped. [CONCLUSION; Es-
TOPPEL.]
CONCLUSION is when a man, by his own
act upon record, hath charged himself
with a duty, or other thing. In this
sense it is tantamount to elfoppel.
rESTOPPEL. ] And this word l’oncluaion
is taken in another sense, as for the end
or later part of any declaration, plea
in bar, replication, conveyance, etc.
00101’1.
CONCORD. 1. Part of the process by
which a fine of lands was levied, prior
to the abolition of fines by 3 ole 4.
Will. 4, c. 74. It was the agree-
ment by which the pretended defendant
acknowledged that the lands in question
were the right of the complainant. 2
Bl.; 1 Step”. 00111. [FINE,I.]
2. A compromise
CONCUBBENT lUBISDICTIONS. The
jurisdiction of several different tribu-
nals authorised to deal with the same
subject-matter at the choice of the
suitor.
CONCUBBENT WRITS. Duplicate orig-
inals, or several writs running at the
same time for the same purpose, for
service on a person, when it IS not known
where he is to be found; or fol’ service
on several persons. as when there are
several defendants in an action. R. S. C.
1883, Ord. VI.
CONDITION. A restraint annexed to a
thing so that by the non-performance
.the party to it shall receive prejudice
and loss. and by the performance com-
modity 01′ advantage: it is also defined
to be what is referred to an uncertain
chance which mayor may not happen.
The following are the most important
kinds of condition: (I) A condition in
a deed, or express: a condition in law
or implied. (2) Precedent or subsequent.
1 Steph. COlli.
CONDITIONAL FEE. otherwise called a
fee simple conditional, properly com-
prises every estate in fee simple granted
upon condition; but the term is
usually understood to refer to that
particular species called a “conditional
fee” at the common law, which is an
estate restrained in its form of dona-
tion to B01lle pa1·ticula1· ‘,eira (exclusive
of others) : as, to the heirs of a man’s
body, or to the heirs male of his body;
which the judges of former days
construed, not as an estate descendible
Digitized by GoogleCON .64
ClONDITIOlfAL J’EE-conti nuetl.
to some particular heirs, but an estate
upon condition that the land was to
revert to the donor, if the donee had
no heirs of his body. This construction
()f gifts of lands was put a stop to by
~. I of the Statute of Westminster the
Second, commonly called the statute
De donis conditionaUblls, in the year
1285, which provided that henceforth
the will of the donor should be observed
.recuntlum fm’lI/am ion carta doni ei/!-
p1’~8a11l (according to the form expressed
in the charter of gift). 2 Bl.; 1 Stepl~.
Com. [DE DONIS; ESTATE.l
oCONDITIOlfAL LIJ[ITATIOlf is a phrase
used spccially in the two following I
ways:-
1. Of an cstate or inl(,l’cst in bnd so
cxprcssly dcfinccl anti limitcrj by the
words of its “I’mlion that it eannot
endure for any longcr timc than t ill a
particular contingcncy happpns. 1
Sll’pll. (,’0/11.. That j” a pI’r.,rllt inlrrrst,
to be ,Ii ,’cHlcd on a/II/lire c·ontingcncy.
2. Of a futurc, usc 01′ inlu’cst limited
to take cffectupon agiv(‘nconlin~(‘ney,
in dcrogation of a prceeding eslate 01′
interest. This is likewise called a
,,’tiftillfl or Xl’l:Ollilm’1/ 11SC, and also an
riuc1dory illtrrrct. 11 is a fill ure estate
to cOllie inlo posses~ion upon a given
-contingcnr·y. 1 Sfl,}}li. (‘0111. [ESTATE;
EXECUTORY INTBRE!<T.]
Thus, if land he granlpd to the use of
A. and his heirs until B. I’ctUI’llS from
Rome. RIlII then to thc usc of Rand his
heirs. A.’s “Hi ai e is a c:onditionallimita-
lion of the lirst sOI-l.anel B:~ estale is a
condit iOlla I limiLillon of the second sort
above menl ioned.
(:OlfDITIOlfS OJ’ SALE. The terms stated
in WI it in~, upon whieh Rn csl.ale or
intl’1’cst is to be sold bv public auclion.
The Convcyaneiug A(‘t.. ItlSl, applies
cert ain eondil ions of sale to all con-
tracls, unless otherwise expressly stated.
COlfDITIOlfS PRECEDElfT AND SUB-
SEQUENT. A l’ond!l ion prl'(‘l’lll’lIt, in
a eonve,van”e 01′ di~p08it.ion (,f an estate,
is a coudil ion which must happen or be
performed bcl’ol’e the cslaLe 01′ interest
ean vest. A “ondition 87tlJxr,/lIcnt is a
condition of t he failure or non-per-
formance of which an estate already
vested may be defeated. 2 Bl.;
1 Stepl~. COlli.
i:ONDOlfATIOlf. A pardoning or remis-
si.on, especially of conjugal offence.
CON
The immediate e:ffect of condonation is
to bar the party condoning of his or
her remedy for the offence in question.
2 Step”‘. Oom.
COlfDUCT J[ODY. Money for the pay-
ment of the reasonable expenses of a
witness at a trial.
CONDUCTIO. (Roman law.) A hiring
(q.r.).
COllEY. A rabbit. See GAME.
COlQ’EDERACY. A combination of two
or more persons to commit some un-
lawful act or to do some damage or
injury to another. [CONSPIRACY.]
COlQ’ERElfCE. 1. In parliamentary
practice, is a mode of communicatinK
important matters by one house of
parliament to the other by means of
deputations of their own members.
May’s Parl. Pract; 2 Step”‘. Com.
2. A meeting between a counsel and
solicitor to advise on their client’s
cause.
COlfJ’ESSIlfG ERROR. The consent bv
a party in whose favour judgment hi’!
been given that such judgment shall
be reversed, on allegation by the
opposite party of “error” in fact 01′
in law. [ERROR.]
COlfJ’ESSIOlf AND AVOIDAlfCE is a
plea in bar whereby a party confuses
the facts as stated by his adversary,
but alleges some new matter by WH_y of
a’/’oitling the legal effect claimed for
them. As, if a man be sued for an
assault, he may admit the assault, but
plead that he committed it in self-
defence. 8 Step”‘. Com.
COlQ’ESSIOlf BY CRIJ[IlfAL may be in
open court when called upon to ,Elead
to the indictment or elsewhere. LVOL-
UNTARY CONFESSION.]
COlQ’ESSIOlf, lUDGDlfT BY. See
COGNOVIT ACTIONEM.
COlQ’ESSIOlf OJ’ DD’ElfCE. Where
defendant alleges a ground of defence
arising since the commencement of the
action, the plaintiff may deliver con-
fession of such defence and sign judg-
ment for his costs up to the time of
such pleading unless otherwise ordered.
Ii. S. C. 1883, Ortl. XXIV. ,.. 8.
COlfJ’ESSIOlf OJ’ PLEA. Same as CON-
lI’ESSION 011′ DEFENCjt (g.”.’.).
Digitized by GoogleCON
CONFESSO, BILL TAXElf PBO. [PRO
CONFESSO.]
CODmENTIAL COHlttUMCATION.
[PRIVILEGED COMMUNICATION.l
CODIlUfATIO CHABTABUJ[ (confirma-
tion of the charters). A statute
enacted 25 Edw. 1, A.D. 1297, confirm-
ing and making some additions to
Magna Charta (g. v.). 1 &eph. Com.;
2 Steph. Com.
CODIlUfATION_ 1. A conveyance of ali
estate or right, whereby a voidable
estate is made sure and unavoidable or
a particular estate is increased. 1
Steplt. Cllm.
2. The ratification by the archbishop
of the election of a bishop by dean and
chapter.
3. Confirmation is also the Scotch term
corresponding to probat8 and letterll
/If adminilltration in England.
CODISCATE. To appropriate to the
revenue of the Crown.
COlO’LICT OF LAWS. The discordance
betweeil the laws of one country and
another, as applied to the same subject-
matter; as, for instance, in the case of
a contract made in one country and
intended to be executed in another.
See Story’s Clltljl-iet of LaWII; IVest-
lake’ll P,ivate international Law;
Dicey’s Conflict lif Laws.
CODOBJ[rrY, BILL OF. A bill filed by
an executor or administrator against
the creditors of the deceased, for the
adjustment of their claims. where the
affairs of the testator or intestate are
found to be so much involved that it
would not be safe to administer the
estate, except under the direction of
the Court of Chancery: a final decree
was then issued by the court, to which
all parties were bound to cOttfol·m.
CONFUSION. A word in Scotch and
French law, signifying the merger or
extinguishment of a debt by the debtor
succeeding to the property of his
creditor, or -vice versii. Bell.
CODUSION OF GOODS is where the
goods of two persons are so intermixed
that the several portions can be no
longer distinguished; as if the money.
corn or hay of one man be intermixed
with tha • of another. If the inter-
mixture be by consent, it is supposed the
proprietors have an interest in common
in proportion to their shares, but if one
L.D.
65 CON
man wilfully intermixes his property
with another’s without his consent, the
law gives the entire property to him
whose right is invaded and endeavoured
to be rendered uncertain without his
consent. 2 Bl.; 2 &eph. Com.
CONGE D’ACCOBDD signifies leave to
accord or agree for the purpose of
levying a fine, prescribed by stat. 18
Edw. 1. Oowel; 2 Bl. ; 1 &eplt. Com.
[CONCORD; FINE, 1.]
CONGE D’ELmE. The king’s per-
mission to a dean and chapter to choose
a bishop. The dean and chapter are
bound to elect such person as the
Crowi!. shall recommend (whose name
is given in the letter missive which ac-
companies the c07l.g4 d’elire), on pain of
incurring the penalties of a prfBmunire.
1 Bl. ; 2 Steph. Com.
CONGEABLE. A thing lawfully done, or
done with leave. Cowel.
CONIOINTS. Persons married to each
other.
CON1UGAL BIGJITS, SUIT FOB RESTI-
TUTION 01′, is a suit by a husband to
compel his wife to live with him, or by
a wife to compel the husband to take
her back. 2 Stepll. COin.
CONIUBATION. A plot or compact made
by men to do any public harm. In ollr
common law it is specially used for such
as have personal conference with the
devil. or evil spirits, to know any secret,
or to effect any purpose. 5 Eli:;;. c. 16 ;
Cowel. The laws against conjuration
and witchcraft were repealed in 1736,
by 9 Geo. 2, c. 5. 4, Bl.; 4, Steph.
Oom..
CODIVANCE signifies shutting of the
eye. It is used especially with
reference to a husband tacitly en-
couraging his wife to commit adultery.
in order that he may obtain a divorce.
Such connivance, if established, will
deprive the husband of his remedy.
2 Steph. Com.; 20 .t 21 Viet. c. 85.
CONSANGUINEUS FRATER. A brother
by the father’s side, in contradistinction
tofrater uterimtB, the son of the same
mother.
. CONSANGUINITY. Relationship by blood,
as opposed to o,t/in:ity, which is relation-
ship by marriage. 2 &eph. Oom.
AFFINITY.j
F
Digitized by GoogleCON
CONSCIElfCE, COURTS OF. Local courts
for the recovery of small debts, formed
before the passing of the County Courts
Act, 1846 (9 & 10 Vict. c. 95), in various
parts of the kingdom, by special Acts
passed for that purpose. They are by
that Act for the most part abolished.
3 Steph. a.m. .
CONSDT presupposes a physical power,
a mental power and a free and serious
use of them, and if it be obtained by
any fraud or undue influence it is not
binding.
CONSEQUENTIAL DAJU.GE OR nUURY
is damage or injury arising by C1I1I8e-
quence or collaterally to one man, from
the culpable act or omission of another.
3 Steph.. 00111.
CONSERVATOR OF TlIE PEACE is he
that hath an especial charge, by virtue
of his office, to see the king’s peace
kept. Some cons03rvators of the peace
are so rirtute I!fficii, some are ‘specially
appointed, and are now called justices
of the peace. 2 &eph. Com.
CONSIDERATION. A compensation,
matter of inducement, or quid pro
‘litO, for something promised or done.
Valuable consideration is necessary to
make binding every contract not under
seal. It need not be adequate but must
be of some value in the eye of the law
and must be legal: it must also be
present or future, it must not be past.
2 &eph. Co-“t.
There is also a consideration called
the consideration of “blood;” that is,
natural love and affection for a near
relation. This is, for some purposes,
deemed a good consideration; but it is
not held to be a oralltable consideration,
so as to support an action on a simple
contract. It is sometimes called me,.i-
torioU8 consideration. 2 Steph. Co-llt.;
A 118011 on ContracU. .
CONSIDDATUJ[ BST PER CUBIAJ[ (it
is considered and adjudged by the
court). The formal and ordinary com-
mencement of a judgment.
CONSIGNATION, in Roman and Scottish
law, is the payment of money by a debtor
into the hands of a party other than
the creditor, either because the creditor
refuses to accept it, or by prior special
agreements between debtor and creditor.
It includes the depositing of money with
a stakeholder. Bell; Paterll1l1l.
CONSIGNKBNT. The act of delivering
goods; also the goods themselves so
delivered. Be who consigns the goods
66 CON
is called the consignor, and the person
to whom they are sent is called the
consignee. 2 Steph. Co-m.
CONSISTORY COURTS. Courts held by
diocesan bishops within their several
cathedrals, for the trial of ecclesiastical
causes arising within their respective
dioceses. The bishop’s chancellor, or
his commissary, iR the judge; and from
his sentence an appeal lies to the
archbishop. Cowel; 3 Bl.; 3 Step”.
Com.
CONSOLATO DEL 1lABE. An ancient
collection of the customs of the sea,
including points .relating to maritime
warfare. It was probably compiled in
the latter part of the fourteenth century,
and seems to have been firat published
at Barcelona. TwuI’ Law of .NatiolU.
CONSOLIDATED FUND. A fund formed
by the union, in 1787, of three public
funds, then known 88 the Aggregatp
Fund, the General Fund, and the South
Sea Fund. This Consolidated Fund
has since been combined with t.hat of
Ireland, and forms the Conaolidatea
Fund of the United Kingdom. It con·
stitutes almost the whole’of the ordinary
public income of the United Kingdom
of Great Britain and Ireland, and is
pledged for the payment of the whole
of the interest of the National Debt.
and is also liable to several other
specific charges imposed upon it from
time to time by Act of parliament.
2 Steph. CoNt.
CONSOLIDATING ACTIONS. [CONSOLI-
DA.TION OBDEB.l
CONSOLIDATION. 1. The uniting of two
benefices into one. C/I1DeZ.
2. The word is also used with reference
to the consolidation of two or more
parishes into one union, for the purpose
of the relief and management of the
poor. 3 Steplt. Com.
3. Also, in Scotland, the merging of the
estate of a proprietor of land with that
of his superior, by the latter taking an
” infeftment” or formal assignment of
the interest of his inferior. Bell; 37 .t
38 Vict. c. 94, I. 6.
CONSOLIDATION OF KORTGAGES. A
mortgagee, whether original or by
assignment, who held more than one
mortgage by the same mortgagor, had a
right in equity to compel the mortgagor
to redeem all the mortgages if he sought
to redeem one of them. See as to
consolidation of mortgages, section 17
of the Conveyancing Act, 1881.
Digitized by GoogleCON
COJr80LIDATION ORDER. A rule for
oonsolidating actions, invented by Lord
Mansfield, the effect of which is to
bind the plaintiffs or defendants in
several actions by the verdict in one,
where the questions in dispute, and the
evidence to be adduced, are the same in
all The application for such a rule is
most frequently made in actions against
underwriters upon policies of insurance.
Order XLIX., r. 8, R.S.C., 1883; and
Libel Act, 1888 (01 ‘” 02 Vict. c. 64),
8.5. ‘ “
COJrSOLS. The Consolidated Fund of
the United Kingdom. [CONSOLIDATED
FUND.]
COJrSPmACY. A combination or agree-
ment between two or more persons to
carry into effect a purpose hurtful to
some individual, or to particular classes
of the community, or to the public at
large. See also Conspiracy and Pro-
tection of Property Act, 1870. 4 step!t.
l’um.
COJrST.AlILE. An inferior officer to whom
the’ service of maintaining the peace,
and bringing to justice those by whom
it is infringed, is more immediately
committed.
1. High aM Petty Ct”118table,.
High ctmBtable, may be appointed
at thc courts leet of the franchise or
hundred over which the;r preside, or, in
defanlt of that, by the Justices at their
special sessions. The proper duty of
the high constable seems to be to keep
the peace within the hundred, as the
petty constable did within the pariah
or tIlW1UI!tip. And see 32 &. 33 Vict. c. 47.
67
Petty r.on,tablel were inferior officers
in every town and parish, subordinate
to the high constable. Their prineipal
duty was the preservation of ,the peace,
though they also’ had other particular
duties assigned to them by Act of parlia-
ment, particularly the service of the
summonses and the execution of the I
warrants of the justices of the peace,
relative to the apprehension and com-
mitment of offenders. The county and
borongh police have no~ superseded
them, and (unless under exceptional
circumstances) they have not been
appointed since 24th of March, 1873.
2 Step!t. Ctmt.
2. .l/etrO]llllitan Police.
The Metropolitan Police It’orce is a
body of men established in 1829, by
~tat. 10 Gco. 4, c. H, and is under the
immediate orders of an officer called the
CON
Commissioner of Police of the Metro-
polis, and two assistant commissioners.
The Metropolitan Police District does
not include the City of London, but
otherwise it extends to a radius of about
fifteen miles from Charing Cross.
The Metropolitan Police It’orce is
under the general control of the Home
Secretary.
3. T!le City {If Lo’lld{ln Poli,.,’.
The City of London Police Force was
established in 1839, by stat. 2 &. 3 Vict.
c. 94. The management of the City
Police is placed in the hands of a com-
mi88ioner, appointed by the Lord Mayor,
aldermen, and commons of the City,
with the approval of his Majesty.
4. Bor{l1lgh Polir.e or Co’ll8tab1Ilary.
In boroughs incorporated under the
Municipal Corporations Act (5 ‘” 6
Will. 4, c. 76), a police or constabulary
force is maintained for the preserva-
tion of the peace therein; and this is
appointed by, and is under the superin-
tendence of, the watc!1 cOl1tm,ittee of the
borough, but see as to certain small
boroughs 51 &. 52 Vict. c. 41, s. 39.
2 Step!t. COlli.
5_ Co’U1tty ConBtabwlary.
In each county there is now also
established a c/lunty c/I’IIItabulary, under
the superintendence of a ohief cO’lllfablt;
(q.1!.).
6. Special CMl8fllblr.R.
These are appointed by the magis-
trates to execute warrants on particular
occasions, or to act in aid of the preser-
vation of the peace on special emer-
gencies. This office, i~ the absence of
volunteers, is compulsory. 2 Stepha
Colli.
CONST.AlILEWICX. The place within
which lie the duties of a constable.
CONSTAT. A certificate of what appears
(constat) upon the record tou(lhing the
matter in question. An exemplification
of the enrolment of letters patent under
the great. seal is calle<J a c01U/tat.
CONSTITUENT. 1. One who appoints
an agent j particularly,
2. One who by his vote constitutes or
elects a member of parliRment.
CONSTITUTION is a word generally used
to indicate the form of the supreme
goverl!ment in a state. Where this is
established by a written instrument, as
in the United States, the written instru-
ment is called the Constitution. The
word is also used of the enactments of
the Roman emperors.
F2
Digitized by GoogleCON
CONSTITUTIONAL. In countries having a
written constitution, such as Switzerland
and the United Htates, the word I’onsti-
ttltional means “in conformity with the
constitution,” and the word tt1tctmBtittf.-
tional means “in violation of the con-
stitution” ; the constitution, in all such
countrieR, being the supreme law of the
state. But, as applied to the legislation
of the British parliament, the words in
question are words of vague and inde-
finite import; they are often used as
signifying merely approval or aversion,
as the case may be. Sometimes they are
used with greater precision, to indicate
conformity with. or variation from, some
traditional maxim of legislation, especi-
ally in reference to the oonBtittdion of
the supreme legislative body.
CONSTRUCTION. Interpretation.
CONSTRUCTIVE is an adjective, nearly
synonymous with” implied” ; meaning
that the act or thing to which it refers
does not exist, though it is convenient,
for certain lpgal purposes, to assume
that it does. See the following titles.
CONSTRUCTIVE KURDEB i~ said to be
committed where a person in the course
of committing somejclony, the natural
and probable consequence of which is
not to cause the death of a human
being, does in fact cause such a death.
Considerable doubt has in recent years
been thrown upon the view that this is
murder. See Stlphen, J. in Reg. v.
&rRt!, 16 Cox, 311.
68
CONSDUCTIVE NOTICE. Notice imputed
by construction of law. Whatever is
sufficient to put any person of ordillary
prudence on inquiry, is constructive
notice of everything to which that
inquiry might have led. See 0011-
‘·I’1la7l.eing Al·t, 1882,8. 3.
CONSTRUCTIVE TOTAL LOBB. [TOTAL
Loss.]
CONBTRUCTIVE TREASON. An act raised
by forced and arbitrary constraction to
the crime of treason; as the accroaching,
01′ attempting to exercise, royal power,
was in the 21 Edw. 3, held to be
treason in a knight of Hertfordshire,
who forcibly assaulted and detained one
of the king’s subjects until he paid him
!IOl. 4 Bl. ; 4 Step!I.• 00711.
CONSTRUCTIVE TRUBT is a trust which
is raised by construction of a court of
equity, in order to satisfy the demands
of justice, without 1’l’jl’l’trJICC tl’ tllC
CON
prcllllTTlable intention oj any pa1″tll.
Thus, for instance, a constractive trust
may arise where a person, who is only
joint owner, permanently benefits Bn
estate by repairs or improvements; for,
a lien or trust may arise in his favour,
in respect of the sum he has expended
in such repairs or improvements. And it
thus differs from an implied trust, which
arises from the implinl or presumed
intention of a party. Sm. Man. Eq.
CONSUETUDIlU1UUB. A ritual or book.
containing the rites and forms of divine
offices, or the customs of abbeys Bnd
monasteries. Cowel.
CONSUETUDIlimUB ET BEBVITIIB (cus-
toms and services). An old writ which
lay against a tenant who “deforced”
(or deprived) his lord of the rent or
service due to him. OOfJ.el.
Aholished by stat. 3.1t 4 Will.4,c. 27.
8.36.
CONSUETUDO EST ALTEBALBX (custom
is another law).
CONSUETUDO LOCI OBSEBVAlfDA EST
(the custom of a place is to be observed).
CONSUL. An agent appointed by a state
to reside in a city belonging to another
state, for the purpose of watching over
thc commercial interests of the subjects
of the state from which he has received
his commission. He is not clothed with
the diplomatic character. His appoint-
ment is communicated to the govern-
ment of the state wherein he is
appointed to reside, and its permil!Sion
is required to enable him to enter upon
his functions. This permission is given
by an instrument called an ea:e’luatur.
TwillR’ Law oj Nati01ls, Pt. I. I. 206 ;
Phillim.ore’, Int. Law, Pt. VIL
CONSULTABY RESPONSE. The opinion
of a court of law upon a special case.
CONSULTATION. 1. A writ whereby a
cause, being formerly removed by pro-
hibition, from thp Ecclesiastical Court.
or Court Christian, to the King’s Court,
is returned thither al1:lLin ; for the judges
of the King’s Court, finding the cause to
be wrongfully called from the Court
Christian, upon this CII1I11tltation or
deliberation, decree it to be returned
again. ClI’wel; 3 lJl. It is analogous
to the writ oflJl·ocedI!1Ido. [PROOE-
DENDO.]
2. A meeting of two or more counsel
and the solicitor instructing them for
delibemting or advising.
Digitized by GoogleCO~
COlf8U1UU.TE TENANT BY CURTESY.
The estate or interest of a husbantl as
tenant by the curtesy is said to be
i1tllU’lltlt11late on the dl’ath of his wife, as
opposed to tbe initiate tenancy which
arises on the birth of a child capable of
inheriting the estate. 1 Steph. l;v.m.
[CURTESY.]
COlf8UJDlATION. The completion of a
thing, especially of a marriage by
cohabitation.
CONTAGIOUS DISEASES ACTS. 1.
Animals: For the prevention of the
spread of certain diseases (see the Acts
of 1878, 1890, and 1894).
2. Persons (see 29 Vict. c. 35, and 32 .It
33 Vict. c.96). These Acts aimed at the
prevention of venereal diseases, in-
cluding gonon-ham, and applied to
certain naval and military stations
only. They were repealed by 49 Vict.
c.10.
OOllTAlfGO. The sum paid per share or
per cent. on a scttling day of the Stock
Exchange, for continuing a .. Bull”
account to the next settlement. Fenn’,
CompendiulII. [BULL.]
COllTEJ[pT OF COURT. Anythingwhich
plainly tends to create a disregard of the
authority of courts of justice; as the
open insult or resistance to the judges
who preside there, or disobedience to
their orders. Contempt of court is
punishable by the immediate imprison-
ment of the offender. 4 Steph. Com.
Anything which is a breach of the
privileges of either house of parliament,
according to the law and usage of par-
liament, is a ‘contempt of the High
Court of Parliament, and punishable by
the house by committal. May’B Parl.
Pract.; Halla/m’B CtJ1/.8t. Hist. ch. 16.
COllTENEDNT seemeth to be the free-
hold land which lieth to a man’s
tenement or dwelling-house that is in
his own occupation. Some, however,
take it to signify that which is
necessary for the support of a man
according to his condition of life.
Others understand by it the credit or
reputation which a man hath by reason
of his freehold. Cowel.
COllTBIrrIOUS BUSINESS. Legal busi-
ness where there is a contest, as opposed
to non-contentious business where there
is no such contest: the term is most
frequently used in connection with
obtaining probate or administration.
69 CON
CONTENTIOUS lURISDICTION. That
part of the jurisdiction of a court which
is over matters in dispute, as opposed
to its ‘fIoluntal’Y jurisdiction, which is
merely concerned in doing what no one
opposes. 3 Bl.
CONTINGENCY WlTl[ DOUBLE ASPECT.
An expression sometimes used to denote
the express limitation of one contingent
remainder in substitution for another
contingent remainder. As if land be
given to A. for life, and if he have a
son, then to that son in fee; and if he
have no son, then to B. in fee. 1 SteJ!k.
Cum. [CONTINGENT REJU.INDER.J
CONTINGENT REKAINDEE is an estate
in remainder upon a prior estate,
limited (i.e., marked out in a deed 01′
other written instrument) to take
effect, either to a dubious and un-
certain person, or upon a dubious and
uncertain event. 1 8tepk. Cbm.
Thus, if land be given A., a bachelor,
for life, and after his death to his
eldest son; this remainder to the
eldest son of A. is conl’ingeld, as it is
not certain whether A. will have any
son. So, if land be given to A. for life,
and after his death to B., in case C.
shall then have returned from Rome;
B.’s interest during A.’s life, until C.
shall have l’eturned from Rome, is a
contingent remainder.
A contingent remainder is defined
by }!’earne as a remainder limited to
depend on an event or condition, which
may never happen or be performed, or
which may not happen or be performed
till after the determination of the pre-
ceding estate. Feal’ne on Conti’1lgel/t
RemailUlerll.
A contingent remainder (1) cannot
take effect until the” prior particular
estates” (i.e., the interests for life, or
otherwise, appointed to take effect
before it) have come to an end ; also
(2) it canuot take effect unless the
requisite contingency has happened.
In the former respect it resembles a
vestea relllailuler, and differs from an
eJ!emttm’Y it/terest. In the latter, it
differs from a vestea remaintlel’, and
resembles an e{l)ectttllry itdel’est. It has
the weakness of both these estates, alld
the strength of neither. See, however,
the Contingent Remainders Act, 1877.
[EXECUTORY INTEREST; REMAINDER;
VESTED REMAINDER.]
In many cases which may be con-
ceived, the distinction between a
vested and a contingent remainder is
one of extreme technicality.
Digitized by GoogleCON
CONTINUANCE. An adjournment of the
proceedings in an action; or, more
strictly, the entry on the record ex-
pressing the ground of the adjournment,
and appointing the parties to reappear
at a given day. Hence, a plea puis
da1’reilt l’OntiIlUfl1WI! signifies an aUega-
tion of new matter of defence which
has arisen lIilll’f’ tlte lUBt udjlntrn-
ment or contiltuanl’e. Continuances are
not now entered on the record or other-
wise. 3 Stepha COII/.
CONTINUANCE. NOTICE OF. Where
a plaintiff could not be ready for trial
on a day for “,hich notice had been
given, he might give notice of con-
tinuance and contiJlue his notice to any
future sitting. It is now obsolete;
notice of trial not being given now for
any particular sittings.
CONTINUAlmO. In actions for trespasses
of a permanent nature. where the
injury is continually renewed, the
plaintiff’s declaration may allege the
injury to have been committed by
continuatill1t from one given day to
another. which is called laying the
action with a continuando. and the
plaintiff shall not be compelled to
bring separate actions for every day’s
separate offence.
CONTINUATION CLAUSE in a marine
insurance means a clause whereby the
period covered by a policy is extended
beyond 12 months. in cases where the
vessel insured is at sea at the expiration
of such 12 months. See B. 11 of
Finance Act, 1901.
CONTRA BONOS M:ORES (against good
morals).
CONTRA FOBJUJ[ COL L A T ION IS
(against the form of the gift) was an
old writ which lay where a man gave
lands to a religious house, for the
perpetual performance of some divine
service, and the abbot or his successor
wrongfully alienated the lands; then
the donor or his heirs had this writ to
recover the lands•.
CONTRA FOBJU.M: FEOFFAlDNTI
(against the form of the feoffment).
An old writ that lay for the heir of a
tenant who, having entered into
possession of certain lands or tene-
ments, under a charter of “feoffment”
from his lord, on the condition of per-
forming certain sel’Vices, was after-
wards “distrained” (i.e., had his goods
70 CON
seized) for the non – performance· of
services not required by the charter of
feoffment. [FEOFFMENT.J .
CONTRA. FORllAJ[ STATtJTI. [AGAINST
THE FORM OF THE STATUTE..]
CONTRA PACEM:. “Against the peace
of our lord the king, his crown and.
dignity”; a form formerly necessary in
indictments for offences against the com-
mon law; the form is still usual but
the omission of these words does not
now render an indictment bad. 14 4′ 15
Viet. c. 100, B. 24 ; 4 Step”‘. Com.
DE BONIS PROPRIIS. Of his own goods. The technical name of a judgment against an administrator or executor to be satisfied from his own property, and not from the estate of the deceased, as in cases where he has been guilty of a devastavit or of a false plea of plene administravit. 4th edition blacks.
DE BONIS TESTATORIS, or INTESTATI. Of
the goods of the testator, or intestate. A term
applied to a judgment awarding execution against
the property of a testator or intestate, as distin-
guished from the individual property of his exec-
utor or administrator. 2 Archb.Pr.K.B. 148, 149.
DE BONIS TESTATORIS AC SL (Lat. From
the goods of the testator, if he has any, and, if not,
from those of the executor.) A judgment ren-
dered where an executor falsely pleads any mat-
ter as a release, or, generally, in any case where
he is to be charged in case his testator’s estate
is insufficient. 1 Williams’ Saund. 336b; Bac.
Abr. “Executor,” B, 3; 2 Archb.Pr.K.B. 148.
DE BONO ET MALO. See De Bien et De Mal.
DE BONO GESTU. For good behavior; for good
abearance.
DE CZETERO. Henceforth.
DE CALCETO REPARANDO. Writ for repairing
a causeway. An old writ by which the sheriff
was commanded to distrain the inhabitants of a
place to repair and maintain a causeway, etc.
Reg. Orig. 154.
DE CAPITALIBUS DOMINIS FEODI. Of the
chief lords of the fee.
DE CAPITE MINUTIS. Of those who have lost
their status, or civil condition. Dig. 4, 5. The
name of a title in the Pandects. See Capitis De-
minutio.
DE CARTIS REDDENDIS. (For restoring char-
ters.) A writ to secure the delivery of charters
or deeds; a writ of detinue. Reg. Orig. 159b_
DE CATALLIS REDDENDIS. (For restoring
chattels.) A writ to secure the return specifically
of chattels detained from the owner. Cowell.
DE CAUTIONE ADMITTENDA. Writ to take
caution or security. A writ which anciently lay
against a bishop who held an excommunicated
person in prison for his contempt, notwithstand-
ing he had offered sufficient security (idoneam
cautionem) to obey the commands of the church;
commanding him to take such security and re-
lease the prisoner. Reg. Orig. 66; Fitzh. Nat.
Brev. 63, C.
DE CERTIFICANDO. A writ requiring a thing to
be certified. A kind of certiorari. Reg. Orig. 151,
152.
DE CERTIORANDO. A writ for certifying. A.
writ directed to the sheriff, requiring him to cer-
tify to a particular fact. Reg. Orig. 24.
DE CHAMPERTIA. Writ of champerty. A writ
directed to the justices of the bench, command-
ing the enforcement of the statute of champertors.
Reg. Orig. 183; Fitzh. Nat. Brev. 172.
DE CHAR ET DE SANK. L. Fr. Of flesh and
blood. A ffaire rechat de char et de sank. Words
used in claiming a person to be a villein, in the
time of Edward II. Y. B. P. 1 Edw. II. p. 4.
DE CHIMINO. A writ for the enforcement of a
right of way. Reg. Orig. 155.
DE CIBARIIS UTENDIS. Of victuals to be used.
The title of a sumptuary statute passed 10 Edw.
III. St. 3, to restrain the expense of entertain-
ments. Barring. Ob. St. 240.
DE CLAMEA ADMITTENDA IN ITINERE PER
ATTORNATUM. See Clamea Admittenda, etc.
DE CLARO DIE. By daylight. Fleta, lib. 2, c. 76,
§ 8.
DE CLAUSO FRACTO. Of close broken; of
breach of close. See Clausum Fregit.
DE CLERICO ADMITTENDO. See Admittendo
Clerico.
DE CLERICO CAPTO PER STATUTUM MER-
CATORIUM DELIBERANDO. Writ for deliver-
ing a clerk arrested on a statute merchant. A
writ for the delivery of a clerk out of prison, who
had been taken and imprisoned upon the breach
of a statute merchant. Reg. Orig. 147b.
DE CLERICO CONVICTO DELIBERANDO. See
Clerico Convicto, etc.
DE CLERICO INFRA SACROS ORDINES CON-
STITUTO NON ELIGENDO IN OFFICIUM. See
Clerico Infra Sacros, etc.
DE CLERO. Concerning the clergy. The title of
the statute 25 Edw. III. St. 3; containing a varie-
ty of provisions on the subject of presentations,
indictments of spiritual persons, and the like. 2
Reeve, Eng. Law, 378.
DE COMBUSTIONE DOMORUM. Of house burn-
ing. One of the kinds of appeal formerly in use
in England. Bract. fol. 14619; 2 Reeve, Eng. Law,
38.
DE COMMUNI DIVIDUNDO. For dividing a
thing held in common. The name of an action
given by the civil law. Mackeld. Rom. Law, § 499.
DE COMON DROIT. L. Fr. Of common right;
that is, by the common law. Co. Litt. 142a.
DE COMPUTO. Writ of account. A writ com-
manding a defendant to render a reasonable ac-
count to the plaintiff, or show cause to the con-
trary. Reg. Orig. 135-138; Fitzh. Nat. Brev. 117,
E. The foundation of the modern action of ac-
count.
DE CONCILIO CURVE. By the advice (or direc-
tion) of the court.
DE CONFLICTU LEGUM. Concerning the con-
flict of laws. The title of several works written
on that subject. 2 Kent, Comm. 455.
DE CONJUNCTIM FEOFFATIS. Concerning per-
sons jointly enfeoffed, or seised. The title of the
statute 34 Edw. I., which was passed to prevent
the delay occasioned by tenants in novel disseisin,
and other writs, pleading that some one else was
seised jointly with them. 2 Reeve, Eng. Law, 243.
DE CONSANGUINEO, and DE CONSANGUINI-
TATE. Writs of cosinage, (q. v.).
DE CONSILIO. In old criminal law. Of counsel;
concerning counsel or advice to commit a crime.
Fleta, lib. 1, c. 31, § 8.
DE CONSILIO CURVE. By the advice or direc-
tion of the court. Bract. fol. 345b.
DE CONTINUANDO ASSISAM. Writ to continue
an assise. Reg. Orig. 217b.
DE CONTUMACE CAPIENDO. Writ for taking
a contumacious person. A writ which issues out
of the English court of chancery, in cases where
a person has been pronounced by an ecclesiastical
court to be contumacious, and in contempt. Shelf.
Mar. & Div. 494-496, and notes. It is a commit-
ment for contempt. Id.
DE COPIA LIBELLI DELIBERANDA. Writ for
delivering the copy of a libel. An ancient writ
directed to the judge of a spiritual court, com-
manding him to deliver to a defendant a copy of
the libel filed against him in such court. Reg.
Orig. 58. The writ in the register is directed to
the Dean of the Arches, and his commissary. Id.
DE CORONATORE ELIGENDO. Writ for elect-
ing a coroner. A writ issued to the sheriff in Eng-
land, commanding him to proceed to the election
of a coroner, which is done in full county court,
the freeholders being the electors. Sewell, Sher-
iffs, 372.
DE CORONATORE EXONERANDO. Writ for
discharging or removing a coroner. A writ by
which a coroner in England may be removed
from office for some cause therein assigned.
Fitzh. Nat. Brev. 163, 164; 1 Bl.Comm. 348.
DE CORPORE COMITATUS. From the body of
the county at large, as distinguished from a par•
ticular neighborhood, (de vicineto.) 3 Bl.Comm.
- Used with reference to the composition of
a jury. State v. Kemp, 34 Minn. 61, 24 N.W. 349.
477
DE CORRODIO
DE CORRODIO HABENDO. Writ for having a
corody. A writ to exact a corody from a religious
house. Reg. Orig. 264, Fitzh. Nat. Brev. 230. See
Corody.
DE CUJUS. Lat. From whom. A term used to
designate the person by, through, from, or under
whom another claims. Brant v. New Orleans, 41
La.Ann. 1098, 6 So. 793.
DE CURIA CLAUDENDA. An obsolete writ, to
require a defendant to fence in his court or land
about his house, where it was left open to the
injury of his neighbor’s freehold. 1 Crabb, Real
Prop. 314; Rust v. Low, 6 Mass. 90.
DE CURSU. Of course. The usual, necessary,
and formal proceedings in an action are said to
be de cursu; as distinguished from summary pro-
ceedings, or such as are incidental and may be
taken on summons or motion. Writs de cursu are
such as are issued of course, as distinguished
from prerogative writs.
DE CUSTODE ADMITTENDO. Writ for admit-
ting a guardian. Reg. Orig. 93b, 198.
DE CUSTODE AMOVENDO. Writ for removing
a guardian. Reg. Orig. 198.
DE CUSTODIA TERRIE ET HZEREDIS, Breve.
L. Lat. Writ of ward, or writ of right of ward.
A writ which lay for a guardian in knight’s serv-
ice or in socage, to recover the possession and
custody of the infant, or the wardship of the land
and heir. Reg. Orig. 161b; Fitzh. Nat. Brev. 139,
B; 3 Bl.Comm. 141.
DE DEBITO. A writ of debt. Reg. Orig. 139.
DE DEBITORE IN PARTES SECANDO. In Ro-
man law. “Of cutting a debtor in pieces.” This
was the name of a law contained in the Twelve
Tables, the meaning of which has occasioned
much controversy. Some commentators have con-
cluded that it was literally the privilege of the
creditors of an insolvent debtor (all other means
failing) to cut his body into pieces and distribute
it among them. Others contend that the language
of this law must be taken figuratively, denoting a
cutting up and apportionment of the debtor’s es-
tate.
The latter view has been adopted by Montesquieu, Bynk-
ershoek, Heineccius, and Taylor. (Esprit des Lois, liv. 29,
c. 2; Bynk.Obs.Jur.Rom. 1. 1, c. 1; Heinecc.Ant.Rom. lib.
3, tit. 30, § 4; Tayl.Comm. in Leg.Decemv.) The literal
meaning, on the other hand, is advocated by Aulus Gellius
and other writers of antiquity, and receives support from
an expression (semoto omni cruciatu) in the Roman code
itself. (Aul.Gel.Noctes Attica, lib. 20, c. 1; Code, 7, 7, 8.)
This is also the opinion of Gibbon, Gravina, Pothier, Hugo,
and Niebuhr. (3 Gib.Rom.Emp., Am.Ed., p. 183; Gra y . de
Jur.Nat.Gent. et XII. Tab. § 72; Poth.Introd.Pand.;
Hugo, Hist. du Droit Rom. tom. p. 233, § 149; 2 Nieb.
Hist.Rom. p. 597; 1 Kent, Comm. 523, note.) Burrill.
DE DECEPTIONE. A writ of deceit which lay
against one who acted in the name of another
whereby the latter was damnified and deceived.
Reg. Orig. 112.
DE AVERIIS RETORNANDIS. For returning
the cattle. A term applied to pledges given in
the old action of replevin. 2 Reeve, Eng.Law, 177.
DE BANCO. Of the bench. A term formerly ap-
plied in England to the justices of the court of
common pleas, or “bench,” as it was originally
styled.
DE BENE ESSE. Conditionally; provisionally;
in anticipation of future need. A phrase applied
to proceedings which are taken ex parte or pro-
visionally, and are allowed to stand as well done
for the present, but which may be subject to
future exception or challenge, and must then
stand or fall according to their intrinsic merit
and regularity.
Thus, “in certain cases, the courts will allow
evidence to be taken out of the regular course,
in order to prevent the evidence being lost by
the death or the absence of the witness. This is
called ‘taking evidence de bene esse,’ and is looked
upon as a temporary and conditional examina-
tion, to be used only in case the witness cannot
afterwards be examined in the suit in the regular
way.” Hunt, Eq. 75; Haynes, Eq. 183; Mitt. Eq.
Pl. 52, 149; Willis v. Bank of Hardinsburg & Trust
Co., 160 Ky. 808, 170 S.W. 188, 189.
Examination de bene esse
A provisional examination of a witness ; an examination
of a witness whose testimony is important and might oth-
erwise be lost, held out of court and before the trial, with
the proviso that the deposition so taken may be used on the
trial in case the witness is unable to attend in person at
that time or cannot be produced.
DE BIEN ET DE MAL. L. Fr. For good and
evil. A phrase by which a party accused of a
crime anciently put himself upon a jury, indicat-
ing his entire submission to their verdict; also
the name of the special writ of jail delivery for-
merly in use in England, which issued for each
particular prisoner, of course. It was superseded
by the general commission of jail delivery.
DE BIENS LE MORT. L. Fr. Of the goods of
the deceased. Dyer, 32.
DE BIGAMIS. Concerning men twice married.
The title of the statute 4 Edw. I. St. 3; so called
from the initial words of the fifth chapter. 2
Inst. 272; 2 Reeve, Eng.Law, 142.
DE BONE MEMORIE. L. Fr. Of good memory;
of sound mind. 2 Inst. 510.
DE BONIS ASPORTATIS. For goods taken
away; for taking away goods. The action of
trespass for taking personal property is tech-
nically called “trespass de bonis asportatis.” 1
Tidd, Pr. 5.
DE BONIS NON. An abbreviation of De bonis
non administratis, (q. v.). 1 Strange, 34.
DE BONIS NON ADMINISTRATIS. Of the
goods not administered. When an administrator
is appointed to succeed another, who has left the
estate partially unsettled, he is said to be granted
“administration de bonis non;” that is, of the
goods not already administered. McNair v. How-
le, 123 S.C. 252, 116 S.E. 279, 285.
DE BONIS NON AMOVENDIS. Writ for not re-
moving goods. A writ anciently directed to the
sheriffs of London, commanding them, in cases
where a writ of error was brought by a defend-
ant against whom a judgment was recovered, to
see that his goods and chattels were safely kept
without being removed, while the error remained
undetermined, so that execution might be had of
them, etc. Reg.Orig. 131b; Termes de la Ley.
DE BONIS PROPRIIS. Of his own goods. The
technical name of a judgment against an ad-
ministrator or executor to be satisfied from his
own property, and not from the estate of the de-
ceased, as in cases where he has been guilty of a
devastavit or of a false plea of plene adminis-
travit.
DE BONIS TESTATORIS, or INTESTATI. Of
the goods of the testator, or intestate. A term
applied to a judgment awarding execution against
the property of a testator or intestate, as distin-
guished from the individual property of his exec-
utor or administrator. 2 Archb.Pr.K.B. 148, 149.
DE BONIS TESTATORIS AC SL (Lat. From
the goods of the testator, if he has any, and, if not,
from those of the executor.) A judgment ren-
dered where an executor falsely pleads any mat-
ter as a release, or, generally, in any case where
he is to be charged in case his testator’s estate
is insufficient. 1 Williams’ Saund. 336b; Bac.
Abr. “Executor,” B, 3; 2 Archb.Pr.K.B. 148.
DE BONO ET MALO. See De Bien et De Mal.
DE BONO GESTU. For good behavior; for good
abearance.
DE CZETERO. Henceforth.
DE CALCETO REPARANDO. Writ for repairing
a causeway. An old writ by which the sheriff
was commanded to distrain the inhabitants of a
place to repair and maintain a causeway, etc.
Reg. Orig. 154.
DE CAPITALIBUS DOMINIS FEODI. Of the
chief lords of the fee.
DE CAPITE MINUTIS. Of those who have lost
their status, or civil condition. Dig. 4, 5. The
name of a title in the Pandects. See Capitis De-
minutio.
DE CARTIS REDDENDIS. (For restoring char-
ters.) A writ to secure the delivery of charters
or deeds; a writ of detinue. Reg. Orig. 159b_
DE CATALLIS REDDENDIS. (For restoring
chattels.) A writ to secure the return specifically
of chattels detained from the owner. Cowell.
DE CAUTIONE ADMITTENDA. Writ to take
caution or security. A writ which anciently lay
against a bishop who held an excommunicated
person in prison for his contempt, notwithstand
