(1.) THE suit in this case was brought by the appellant against the respondent and James F. Crisp, her son, for Rs. 15,000, and Rs. 108-12-0 for interest thereon, and for a declaration that the plaintiff is entitled to a charge or lien upon the property mentioned in the plaint for or in respect of the amount that might be decreed in the suit; and also for a sale of the premises equitably mortgaged, in the event of the defendants failing to pay the amount decreed. On the 12th December 1888, the respondent, Mrs. Crisp, executed a general power-of-attorney, by which she constituted and appointed her son, J.F. Crisp, her attorney and agent. The only parts of the power-of-attorney which it is necessary to state are the following passages: "And also to buy, sell, mortgage, let and lease, as the case may be, any houses or lands and to borrow and take loans of money in my name upon such terms and conditions as he shall think proper...and generally to act for me in all matters and things touching or concerning all or any of my affairs as fully and effectually to all intents and purposes as if I were acting therein in person". It was in evidence that Mrs. Crisp had two or three times before April 1889 lent her son money on his promissory note. About the end of April 1889 J.F. Crisp asked the Manager of the National Bank of India if he would advance money on his property. Crisp said it was his mother's, and that he had power to deal with it. The Manager said he would make the advance if Crisp would give him a good name. Crisp then brought to the Manager two joint and several promissory notes, one for Rs. 10,000 and the other for Rs. 5,000, both dated the 30th April 1889, payable three months after date to the appellant or order, signed "J.F. Crisp" and "p.p. J.E. Crisp, J.F. Crisp". The Manager said he must have the title-deeds as well, and J.F. Crisp on the same day deposited with the Manager the title-deeds of landed property in Phayre Street, Rangoon, belonging to Mrs. Crisp, being the property mentioned in the plaint, and the notes were discounted. J.F. Crisp had not asked his mother's consent to the deposit, but in the evidence she gave in the suit it appeared that, about the time of the loan, he told her that he had signed two promissory notes for his own use in her name, and that to secure the amount borrowed he had pledged her deeds to the Bank, and to that she made no objection; and it is clear that she assented to the deposit with the Bank, but she said she objected to her son pledging the deeds with the appellant. The notes became due on the 2nd August, and on that day J.F. Crisp wrote to the appellant the following letter: Rangoon, 2nd August 1889. Dear Sir, In consideration of your paying this day the Rs. 15,000 due to the National Bank of India, Limited, I hereby agree to your keeping the papers of the Phayre Street property with you as security, and that I will have the same settled within three months from date, and pay you interest at 9 per cent. per annum.
(2.) UPON receiving this letter the appellant wrote a cheque for Rs. 15,000 in favour of the Bank, and sent it to Crisp, who took it to the Bank, and was told by the Head Clerk that they would deliver the documents after the cheque, which was on another Bank, had been passed. The next day, the
(3.) IT is a rule of equity that if the endorser of a bill of exchange pays the holder of it, he is entitled to the benefit of the securities given by the acceptor which the holder has in his hands at the time of the payment, and upon which he has no claim except for the bill itself Duncan Fox and Co. v. North and South Wales Bank L.R. 6 App. Cas. 1 The same rule is applicable to the endorser of a promissory note. It is possible that there may be circumstances which would create an exception to this rule, but this case is not one. Therefore the appellant, when he paid the Rs. 15,000 to the Bank, became entitled to the benefit of the deposit of the title-deeds. No further assent by Mrs. Crisp was necessary to entitle him to it. But although in his plaint he stated the fact of the deposit with the Bank as a security for the repayment of the loan, he did not rest his claim upon this equity. He founded it upon the letter of the 2nd August, alleging that he agreed to the proposal in that letter, and gave the cheque for Rs. 15,000. In their Lordships' opinion Mrs. Crisp was bound by that letter, although she did not personally assent to the appellant keeping the title-deeds as security. When the notes became due the Bank might have sued her upon them, and have also taken proceedings to have the mortgaged property sold. The letter of the 2nd August was intended to prevent this, and the arrangement for continuing the security in consideration of getting three months additional credit was, in the opinion of their Lordships, within the general authority given to J.F. Crisp by the words of the power-of-attorney before quoted, "and generally to act for me, &c". Their Lordships are therefore of opinion that on both grounds the decree is erroneous in dismissing the suit as against Mrs. Crisp, and they will humbly advise Her Majesty to reverse it, and to make a decree against both defendants according to the prayer in the plaint, with costs. The respondent will pay the costs of this appeal.