Q.5 Redeem Up Forclose Down

DATE DOWNLOADED: Wed Feb 10 00:40:01 2021
SOURCE: Content Downloaded from HeinOnline
Citations:
Bluebook 21st ed.

Redeem up Foreclose Down, 1 LAW COACH 95 (1920).
ALWD 6th ed.

, Redeem up foreclose down, 1(6) Law Coach 95 (1920).
APA 7th ed.

(1920). Redeem up foreclose down. Law Coach, 1(6), 95-96.
Chicago 17th ed.

"Redeem up Foreclose Down," Law Coach 1, no. 6 (November 1920): 95-96
McGill Guide 9th ed.

"Redeem up Foreclose Down" (1920) 1:6 Law Coach 95.
AGLC 4th ed.

'Redeem up Foreclose Down' (1920) 1(6) Law Coach 95.
MLA 8th ed.

"Redeem up Foreclose Down." Law Coach, vol. 1, no. 6, November 1920, p. 95-96.
HeinOnline.
OSCOLA 4th ed.

'Redeem up Foreclose Down' (1920) 1 Law Coach 95
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NOVEMBER, 1920 THE LAW COACH
considered the question of the locality and neighbourhood. The reason

for this is that what is a nuisance say in Mayfair is not necessarily a
nuisance in Whitechapel.)
III. CONTRACTS.
CARRIAGE OF GOODS
Springer v. G.W.Ry. The Court of Appeal affirmed the decision of
the High Court, where the facts were as follows :-The defendant Com-
pany were common carriers of a quantity of tomatoes. Owing to a strike
the Company, knowing that considerable delay must intervene before the
tomatoes could be delivered, and that they would probably go bad, sold
them without communicating with the plaintiff. Held the Company
must pay damages for wrongful conversion of the plaintiff's goods.
(Note.-It is a general rule of law that a carrier of.goods is entitled to sell
goods of a perishable nature in cases of emergency to save a total loss to
their owner. A carrier, however, is bound to communicate with the
owner before taking such drastic steps provided it is reasonably possible
to get into communication with him. The Company in this case could
easily have communicated with the plaintiff, but neglected to do so ; it
was for this reason alone that they were held liable in damages.)
RATE OF EXCHANGE IN ASSESSING DAMAGES.
Di Ferdinando v. Simon, Smith & Co. In this case the Court of
Appeal decided that where the contract was a foreign one the damages
should be assessed according to the value of English money at the date
when the breach of contract occurred. (Note.-There have been several
cases in which difficulties have arisen owing to the different and fluctuat-
ing rates of exchange which have existed since the War. This case has
been affirmed by the Court of Appeal, and will probably settle the law
finally on this point.)
REDEEM UP FORECLOSE DOWN.

THE magic words " Redeem up foreclose down " are really very simple
in their application and refer to cases where property has been mortgaged
so that both a first and a second mortgagee and possibly further subsequent
incumbrances, have claims against the property.
Let us dedl with " foreclose down " to commence with. It is only
the first mortgagee who can foreclose ; if he is successful in Iis application
to the Court for a foreclosure order and the order is made absolute after
the six months when it is merely "nisi," then and only then are the sub-
sequent encumbrancers, i.e. the 2nd, 3rd, 4th, etc., mortgagees, debarred
from the mortgaged property as a security for their loan. By foreclosing
the Ist mortgagee sits down on them and they are squashed out. This
is the -meaning of " foreclose down."
Now as to " redeem up," if any encumbrancer subsequent to the
Ist mortgagee desires to redeem the property from the Ist mortgagee
(for, remember anyone interested in the " equity of redemption " has a
right to redeem, i.e. the mortgagor, 2nd, 3rd, and subsequent incum-
brancers 'and the heirs, personal representatives and creditors of these
people also), and he is most likely to do so where the ist mortgagee
threatens foreclosure proceedings in order to save himself from being
" foreclosed down " upon ; he may" redeem up," that is he may redeem
THE LAW COACH NOVEMBER, 1920
those persons whose incumbrances rank in priority to his own. Having

" redeemed up " he acquireF, the enviable position of ist mortgagee and
can himself foreclose-" foreclose down " upon any unfortunate in-
cumbrancers whose claims rank subsequent to him.
We will conclude with an illustration. Suppose A the mortgagor to
have mortgaged his property Whiteacre first to B for £I,ooo, then to C
for LI,ooo, then to D for £I,OOO, then to E for &I,ooo, If B forecloses he
forecloses down of C, D, and E and their security is lost. Suppcse D
wishes to prevent B from foreclosing he must redeem up, i.e. redeem
C and B, the two incumbrancers prior to himself in the scale, and having
done so he can " foreclose down " on E. E could of course have avoided
this by redeeming up, i.e. redeeming the property from D, C, and B.
CIVES EX JURE QUIRITUM ET PEREGRINI.

AN important distinction long existed at Roman Law between cires and
fieregrini, for citizens ex jure Quiritium enjoyed public and private rights,
which were persistently denied to the members of other States, whether
subjects of Rome or independant. These were designated-first, as
hostes, then peregrini, and finally, provinciales. When conquered, they
were allowed for the most part to preserve their own particular laws and
customs. The principal rights of a civis consisted of the jura. (I)
Suffragii et honorum (voting and public offices). (2) Commercii (capacity
to enter into solemn forms of conveyance, etc.), and (3)Comnubii, the
capacity to contract Quiritary marriage, i.e. confarreatio.
But as the intercourse between Rome and foreign communities in-
creased, it became necessary to modify the exclusiveness of the civitas.
The Jus Laiii extended private rights to the Latini, the Jus Italicum
gave privileges to towns and territories, and the municipes, or burgesses
of independant municipia, were placed in the enjoyment of the com-
mercium and the connubium. In addition t:! these concessions, a special
praetor peregrinus was appointed in 242 B.C. to determine civil cases in
Italy. (i) between cives and members of independant States; (2)
between members of one such State and those of another; (3) between
members of subject States living in Rome.
The body of subsidiary law introduced by the edicts of these praetors,
and authorised by them, was. known as the jus gentium of the earlier
Romans, that is to say, a collection of rules common to, or conversant
about, those gentes who were subject to the Rkqrnan people. " After the
dominion of Rome " (says Austin, p. 576), " had extended beyond Italy,
the same or a similar law was administered in the outlying provinces (by
their own respective Presidents or Governors) in aid of the law peculiar
to Rome herself, or of the law obtaining in any of those provinces before
its subjection to the conquering city," By this means Roman Law
became practically uniform throughout the Empire.
This jus gentium " was the only jus gentium that was known to the
Roman Law till the jus gentium or naturale, which occurs in Justinian's
compilations, was-ii-mported into it by the jurists, who are styled Classical,
from the speculations 6f Greek Philosophers on Law and Morals." The
jus naturale was first suggested by the jurist Ulpian and, by some, it is
thought, that the jus naturalewas not the outcome of Stoic influence; in

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DATE DOWNLOADED: Wed Feb 10 00:40:01 2021

SOURCE: Content Downloaded from HeinOnline

Bluebook 21st ed.

ALWD 6th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 8th ed.

OSCOLA 4th ed.

considered the question of the locality and neighbourhood. The reason

REDEEM UP FORECLOSE DOWN.

those persons whose incumbrances rank in priority to his own. Having

CIVES EX JURE QUIRITUM ET PEREGRINI.

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