ever there are two funds to be administered, entirely irrespective of their contractual liability. It is needless to remark that the rule of Aldrich v. Cooper has always been followed as a clear principle of equity, but its application in England gives rise to an inconsistency similar to that which we have noticed in cases of contribution at law.

If A. mortgages Whiteacre and Blakacre to B., and then conveys Whiteacre to C., the latter has an equity as against A. and B., that B. shall have recourse first to Blackacre, but if A. conveys Blackacre to D., then Whiteacre and Blackacre must contribute pro rata to pay B. Such, we have seen, is the rule at law. Suppose that the conveyance to C. is by the way of mortgage, the same rule obviously applies with a like result, for B. has two funds liable for his debt while C. has but one; B. therefore is restricted to Blackacre, or to reach the same and with stricter justice to B., C. is subrogated, after B. is paid, to B.'s lien against Blackacre. If this is a right at all, C. cannot be divested of it by any act of A., to which he does not assent, such as a conveyance or mortgage to D., a stranger. But in such case, the debtor having parted with all of his estate or equity of redemption, the doctrine of equity in England is that C. and D. have equal equities, and therefore should equally contribute.

In Barnes v. Racster, 1 Y. & C. Ch. 401 (1842), Racster mortgaged his land, consisting of Foxhall coppice and lot No. 32, as follows: In 1792, Foxhall to Barnes; in 1795, Foxhall to Hartwright; in 1800, Foxhall and No. 32 to Barnes; to secure as well the first and further advances; and in 1804, Foxhall and No. 32, to Williams, the subsequent incumbrancers taking with notice. The question arose in Barnes's foreclosure, whether, as No. 32 was sufficient to meet the whole of Barnes's claim, Hartwright could, as against Williams, compel Barnes to resort thereto, thus leaving Hartwright the first incumbrancer on Foxhall. It was argued in his behalf, that in 1800, before the subsequent mortgage was made to Williams, Hartwright had acquired a right of which no subsequent dealings of the mortgagor with Williams could deprive him. Vice-Chancellor KNIGHT BRUCE decided however that Barnes should be paid from the proceeds of Foxhall and

No. 32, according to their amounts, that the residue of the first fund should be paid to Hartwright and the residue of the second to Williams.

While it is true that the Vice-Chancellor reserved the question of what the rights of Hartwright and Williams would have been had Barnes's security upon No. 32 preceded and not followed Hartwright's security upon Foxhall, his opinion is broad enough to cover that case also, and indeed when it actually arose in Bugden v. Bignold, 2 Y. & C. Ch. 377 (1843), it was similarly decided.

Bignold took a mortgage of freehold, and afterwards of the freehold and copyhold estates for an additional advance, after which the freehold subject to the prior mortgage was mortgaged to Round, and finally the copy hold was mortgaged to Bugden without notice of the prior mortgage thereof to Bignold. Round and Bugden both claimed the proceeds of the copyhold estate, and, as in Barnes v. Racster, it was held that Round lent his money not only without notice of the security on the copyhold, but without notice of its existence at all and without prospect of any benefit from it. Bugden, however, was an innocent purchaser for value. Therefore the Bignold second mortgage should be charged, pari passu, on both freehold and copyhold. Upon reargument, the case of Titley v. Davies, 2 Y. & C. Ch. 399, decided by Lord HARDWICKE in 1743, was relied on. In that case, Jenyns mortgaged to Shepherd an estate at Linwood, an estate at Westminster, and certain fee farm rents. He then mortgaged Linwood to Titley; then sold the rents to Peyton, and finally mortgaged Westminster to Davies. Titley paid off Shepherd's mortgage, and was allowed to hold all that was included in it, until he was paid not only Shepherd's mortgage but his own also. While this case is complicated by the manner in which it arose, so far as Titley was concerned, the result was precisely the same as if Shepherd had been paid by a sale of Linwood under foreclosure, and Titley had then been subrogated to the mortgage as against Peyton and Davies, whose rights were acquired subsequently to Titley's, and it is submitted with deference as the case is otherwise explained by eminent judges, that the decision of Lord HARDWICKE in

this case, and Lanoy v. Athol, 2 Atk. 446, should have led to a different conclusion in the cases cited.

That Barnes v. Racster did not meet with the unqualified approval of the profession is apparent from a criticism in the Jurist, Vol. 7, Pt. II. p. 109, although, together with the later case of Bugden v. Bignold, it is supported by a reviewer in The Law Times, I. p. 397, July 15, 1843, who agrees with the first impression of the Vice-Chancellor in the latter case, that Bugden being an innocent purchaser for value, should be paid in full from the proceeds of the copyhold. It is admitted, however, that either view is inconsistent with Titley v. Davies.

The general creditors of a bankrupt, however, have no such supervening equity as to object to such marshalling. Thus, in Gibson v. Seagrim, 20 Beav. 614 (1855), Seagrim mortgaged his land to Godwin, with certain stock as additional security; he then mortgaged his land to Gibson; Godwin, and a prior mortgagee sold the land, and the balance, including the proceeds of the stock, was paid to Seagrim's assignee in bankruptcy, against whom Gibson claimed that the balance should be paid him, as Godwin had two securities while Gibson had but one, and so ROMILLY, M. R., decreed. S. P. by SUGDEN, L. C., Baldwin v. Belcher, 3 Drew. & War. 173 (1842). In Anstey v. Newman, 39 L. J. Ch. 769 (1870), a mortgagee of land, a portion of which was included in a prior voluntary settlement, was required to resort first to the unsettled land, because the voluntary settlement was good as against the subsequent unsecured creditors, though void as to the mortgagee.

In Sober v. Kemp, 6 Hare 155 (1847), a vendee of premises included in a mortgage, paid it, took an assignment, and filed a bill against his grantor's devisee and several mortgagees of the other premises included in the first mortgage. It was held by Vice-Chancellor WIGRAM that the plaintiff was entitled to the successive foreclosure of all the subsequent mortgages in default of redemption, on the ground that the mortgagees had no greater rights than their mortgagor.

It was said, however, by Vice-Chancellor TURNER, in Tidd v. Lister, 10 Hare 157 (1852), that the cases decided since

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Aldrich v. Cooper had not affected that decision, but it is impossible to study the opinions in Barnes v. Racster, and Bugden v. Bignold, without concurring in the criticism of KENNEDY, J., in Cowden's Estate, 1 Pa. St. 267 (1845), who points out that the Vice-Chancellor in the former case speaks as if the right of the party claiming to have the assets or securities marshalled, depended on a contract made with him to that end, whereas marshalling seldom depends upon contract, but upon "mere principles of equity and general justice," as is said by Mr. Justice STORY, in 2 Equity, § 1234. Mr. Justice KENNEDY proves this very conclusively by the case of Aldrich v. Cooper itself, and the illustration employed by Lord ELDON, who effectually disposed of this very argument urged in behalf of the defendants that the copyhold estates, which were the subject of the suit, "were not liable to debts further than by express contract." (8 Ves. 385) Lord ELDON held in so many words at p. 389, that the application of the fund did not depend upon its being assets "either by will, or by contract, inter vivos, but upon the ground that the specialty or mortgage-creditor having two funds, shall not by his will resort to that by going to which he will disappoint as just a creditor who cannot resort to any other." It is true that both Lord ELDON, in Aldrich v. Cooper, and Lord HARDWICKE, in Lanoy v. Athol, 2 Atk. 446, confined their opinions to cases where no third person was concerned, and it has been attempted as a conclusion therefrom, to exclude from the operation of the rule, the case of a subsequent purchaser or incumbrancer of some portion of the estate covered by the first lien. Lord ELDON's caution was characteristic, while Lord HARDWICKE'S opinion is clearly shown by the case of Titley v. Davies, supra. Judge KENNEDY speaks of Barnes v. Racster, as laying down a new doctrine; and indeed the Vice-Chancellor in that case seems to suppose that the equity only arises on filing the bill (see 1 Law Times, 397), but it is submitted that there is no principle or authority to support this theory.

In Mower's Trusts L. R., 8 Eq. 110 (1869), funds A. and B. were mortgaged to Watson; then A. alone to Sustin, and finally A. and B. to William, subject to the payment of the two former. Fund A. was absorbed in payment of Watson's

mortgage, and it was held by Lord ROMILLY that B. should be applied to Sustin's mortgage in priority to Williams's. No opinion was delivered by the Master of the Rolls, and it is only possible to reconcile the decision with Barnes v. Racster with which he formerly said that he agreed (Gibson v. Seagrim, 20 Beav. 614), by distinguishing it on the ground that nothing was included in the third mortgage by its terms, save the surplus of both funds after the payment of both prior mortgages. It may be a question, however, whether such weight should be given to the wording of a mortgage of funds already mortgaged, which would naturally be said to be sub. ject to the payment of the prior charges. The doctrine of the consolidation of mortgages is similar to tacking, but has been sometimes, though erroneously, believed to be an outgrowth of the principle of marshalling as applied in Titley v. Davies; this, however, with deference to the opinion of Lord

HATHERLEY, in Wellesley v. Mornington, 17 W. R. 355. In) Consolid

England, a Court of Equity will not allow a mortgagor to get back one of several mortgaged estates, unless he pays the mortgagee all that is due him, although a portion of his debt might be secured upon an entirely different property. And persons deriving title from the mortgagor, such as subsequent purchasers, or mortgagees of one, or a portion of one of the mortgaged estates, are held to take subject to the same equity of the mortgagee or his assignee, even though under assignment subsequent in date to the creation of the second mortgage: Vint v. Padget, 2 De G. & J. 611; Beevor v. Luck, L. R. 4 Eq. 537. Indeed, the rule was once extended to a case where not only the assignment of the mortgage, but even the mortgage itself being subsequent, was held to operate against an intervening mortgage of one estate: Tassell v. Smith, 2 De G. & J. 713; but this was afterwards overruled in Mills v. Jennings, 13 Ch. Div. 639; s. c. in House of Lords, 6 Ap. Cases, 698. See article in 69 Law Times, 94; 72 Id. 219; 6 Canadian L. T. 409; 19 Canada Law J. 121; 26 Solicitors' Journal, 356. The doctrine has not been followed in the United States, save in a few cases (Jones on Mortgages, § 1083), and is important in our present discussion, because the English cases following Barnes v. Racster are based upon the