Reliet—The provisions of the Act enabling the reopening of money lending transactions are expressly, made applicable to any transaction which, whatever itz form may be, is substantially one of money-lending. But this relief is granted only in the case of money lent after the 1st November 1900, or of an agreement or security made or taken after that date in respect of money lent either before or after that same date. And it should be noted that nothing in those provisions can affect the rights of any bond ,fide a.ssignee or holder for value without notice ; nor do they derogate from the existing powers or jurisdiction of any Court. Relief is granted by any' Court in which a money-lender happens to be proceeding for the recovery of money lent or the enforcement of an agreement or security, provided the subject matter of his action constitutes a case in respect of which relief can be granted as above-mentioned. It is granted in the course of such proceedings, or at the trial ; but the person sued must be in a position to offer evidence which satisfies the (a) that the Interest charged in respect of the sum actually lent is excessive ; or (b) that the amounts charged for expenses, inquiries, fines, bonus, premiuni, renewals, or any other charges, are excessive ; and 2, that in either case the transaction is harsh and unconscionable, or is otherwise such that a court of equity would give relief. For the purpose of granting the relief the Court can reopen the transaction, ta.ke an account between the money-lender and the person sued, and, notwithstanding any statement or settlement of account or any agreenient purporting to close previous dealings and create a new obligation, reopen any account already ta.ken between the parties. The person sued can then be relieved " from pay ment of any sum in excess of the sum adjudged by the Court to be fairly due in respect of such principal, interest, and charges as the Court, having regard to the risk and all the circumstances, may adjudge to be reasonable." lf any such excess has been paid or allowed in account by the debtor, the Court has power to order the money-lender to repay it. It has been recently decided, in Re a Debtor ; E.r parte the Debtor (114 L. T. 426) that relief under the Act is not limited to that which a court of equity would have given before the Act; it will be given if the bargain is harsh and uncon scionable because of excessive interest and charges—even where the borrower is of full age and in no special relation to the lender (Michaelson v. Nichols). And the Court may also set aside, either wholly or in part, or revise or alter any security given or agreement made in respect of money-lent by the money-lender, and if the latter has parted with the security, it may order him to indemnify the borrower or other person sued. In view of its importance, there is some excuse for repeating here that the only transactions giving the Court jurisdic tion to exercise this power of relief are those arising out of " money lent after the 1st November 1900, or of an agreement or security made or taken after that date in respect of money lent either before or after that same date." It should also be noted that the Court has jurisdiction to relieve even though the matter does not originally come before it in the form of proceedings by the creditor against the debtor. It can, for example, entertain any applica tion for relief which is made to it for relief by a borrower or surety, or other person liable, notwithstanding that the time for repayment of the loan, or any instalment thereof, may not have arrived. And in bankruptcy pro ceedings the Court has a like power to the above, in respect of claims by money-lender creditors. In a County/ Court this power to relieve can be exercised at any stage of the proceedings, and whether notice has or has not been given by the defendant of his intention to apply for relief. An applica tion in such a Court by a borrower or surety, or other person liable, must be by an action commenced by plaint and summons in the ordinary way. Particulars of demand are to be filed, and these should state concisely the grounds on which the application is made and the nature of the relief claimed. See also MONEY-LENDERS in Appendix.
Misrepresentations to are constituted misdemeanours by the Act when made by money-lenders, or their managers, agents, or clerks, or any one who is a director, manager, or other officer of a corporation carrying on the business of a money-lender. The maximum punishment upon conviction is two years' hard labour and a fine of 1'500. The offence is committed if either of the above-mentioned persons "by any false, misleading, or deceptive statement, representation, or promise, or by any dishonest concealment of material facts, fraudulently induces or attempts to induce any person to borrow money or to agree to the terms on which money is or is to be borrowed." MONTH.—In all Acts of Parliament passed since the year 1850, the word "month" must be taken as meaning a calendar month unless there is an express declaration that the word is to mean a lunar month. Up to the end of that year the general rule was that a month, when referred to in an Act of Parliament, should be understood as a lunar month. In other cases the exact meaning of the word month is not always so clear. There is, however, express statutory authority for determining the word as import ing a calendar month in the case of proceedings in the Supreme and County Courts, and in connection with Bills of Exchange and Promissory Notes.
And it is well settled that a month for the purposes of a Notice to Quit, or redemption in a foreclosure suit, or the determination of the contract of service of a menial servant, is also a calendar month. As a rule of general application for practical purposes it may be said that in legal matters a month means a lunar month, and in commercial matters a calendar month ; that in a contract at law and equity the word means a lunar month, and in a mercantile contract a calendar month. A month in law is a lunar month, not only because it is always one uniform period, but because it falls naturally into a quarterly division by weeks. Therefore a lease for "twelve months" is only for forty-eight weeks ; but if it is for a " twelvemonth" in the singular number, it is good for the whole year. As in all cases, however, the Court reads the whole of the contract in order to gather the intention of the parties with regard to the meaning of the word month, the rule must be taken as nothing more than the enunciation of a general principle. Invoices, terms of credit, bills of lading, charter-parties, and like commercial documents are always subject to the rule that a month means a ca.lendar month. In calculating a calendar month, if the computation commences during the course of a month, the right method is to proceed from the given day in that month to the day with the corresponding number in the ensuing month. Accordingly, if a party purchases goods to be paid for in two calendar months, the credit does not expire until the end of the corresponding day of the second month. And in The South Stqffbrdshire Tramways Co., Ltd. v. The Sickness and Accident Assurance Association, Ltd., it was held that the effect of " from" in a clause in an accident policy—" for twelve calendar months from November 24, 1887 "—was to exclude November 24,1887, and to include November 24, 1888, in the period of the insurance.
MORTGAGE.—It has been said by an eminent judicial authority that it is dangerous to attempt to define the precise relation in which mortgagor and mortgagee stand to each other, in any other terms than those very wonis. At common law, however, a mortgage is described as an estate created by a conveyance, absolute in form but designed as a security for the payment of money or the performance of some other act, to become void upon such payment being made or act perforined, agreeably' to the terms prescribed at ihe time of the conveyance. It is in substanc,e but a security for a debt or an obligation to which it is collateral ; and it particularly differs from a pledge in that the property, the subject oP. the security, is re tained in the possession of the mortgagor in the case of a niortgage, but is deposited with the pledgee in the case of a pledge. The one who gives a mortgage is called the mortgagor, and the one who takes, the mortgagee. A mortgage of goods and chattels is more properly kiuwn as a BILL OF SAI,E (q.v.), the term " mortgase" being applied to securities founded upon other classes of property. This article has reference only to securities of the latter description. It should, however, be read in the light of the wide definition of a mortgage given in the Conveyancing Act, 1881 ; there a mortgage is declared to include " any charge on any property for securing nioney or money's worth." A " legal" mortgage is one made in the forni of a conveyance by deed, giving a right to the mortgagee to himself exercise in certain events the powers conferred on him by the Conveyancing Act, and which are described below with sonic particularity.
At the present day the ordinary form of a legal mortgage, according to the authors of Prulcau.v's Conveyancing, "is a conveyance by the mortgagor to the mortgagee, subject to a proviso or condition for a reconveyance on payment of the money intended- to be secured on a day named, which is usually six months from the date of the deed. The conveyance is preceded or followed by covenants by the mortgagor with the mortgagee for payment of principal and interest on the appointed day, and if the principal is not paid on that day, for the future payment of interest half-yearly. Under the latter covenant arrears of interest can be sued for without requiring payment of the principal. If the property consists of houses or buildings there should be a covenant for insurance by fire." A mortgage of leaseholds is made either by way of a.ssignment to the mortgagee of the whole residue of the term vest-ed in the mortgagor, or of all under-lease to the mortgagee of that residue, less the last day or two. " The latter course," write the above authorities, "should generally be adopted where the rent reserved by the lease is more than nominal, or the covenants are onerous ; for if the mortgagee takes an assignment, a privity is established between him and the lessor, and he may be sued for the rent or for a breach of any of the covenants." It is possible, of course, that the mortgagor may do some act, or fail in some obligation under his lease, that may cause a forfeiture of the term to be incurred. A mortgagee of leaseholds should therefore be careful that his mortgagor does not incur a forfeiture, though in the event of his so doing relief therefrom may in most cases be obtained from the Court. On this point reference should be made to the article on LEASES, and par ticularly to the provisions therein set out of the Conveyancing Act, 1892. affecting under-lessees, and, consequently, mortgagees by way of under-lease.