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dealt with both properties in favour of mortgagees, or other purchasers for value, the question arises, how are the rights of those claiming in the equity of redemption of the different properties to be adjusted?
It is now clearly settled that the prior incumbrance existing over all the properties must be apportioned between the respective assignees of it according to the value of the portion in which each is interested.
Flint v. Howard, mentioned in sub-rule 3 it may be urged, is not a case of marshalling, but it is submitted that it is. It was there decided that where Blackacre and Whiteacre have been mortgaged to A and the equity of redemption in both properties has been assured to B and C, then either B or C having redeemed the incumbrance can claim that as against his property it must be so apportioned that each separate property is only rateably liable. It seems, therefore, to be correct in treating the right to apportionment in such cases as this as belonging to the rule of marshalling. It is in fact only anticipating what the Court would do under the same circumstances in case the incumbrancer had realized one only of the properties over which his remedies extend.
An argument against the right to apportionment in such circumstances which may be urged is that when the mortgagor disposes of one of the properties by way of mortgage, or sale, the assignee's right to marshal will prevail against the mortgagor as owner of the other property, why then should the first assignee be in a worse position by a subsequent disposition of the remaining properties ? This point was alluded to by Lord Justice Kay in Flint v. Howard. • If,' said he, it had been decided that after the mortgage of one of the properties to B the mortgagor could not alter B's position by mortgaging the other to C, that would be intelligible. But it is submitted that the rule of apportionment now firmly established is founded on good sense, and if the argument against it had prevailed it would have added another impediment to dealings with equities of redemption.
To judge from the paucity of modern cases on the subject, the rule of marshalling does not frequently arise, but where, for example, a builder in a large way of business fails, having mortgaged many properties to many different mortgagees, the adjustment of marshalling may give rise to complexity. When the dates of the different incumbrances have been ascertained (and it is scarcely necessary to say that where land not subject to a trust for conversion is concerned, the priorities will be governed by those dates and not by the rule affecting the assignment of choses in action), and when also the facts have been tabulated in convenient form, it will be found easier to determine the various rights of those concerned. To take a concrete case, let the following be supposed : (1) 1890, 1 Jan. Mortgage for £1,000 to I.S. of Blackacre,
Whiteacre and Greenacre. (2) 1895, 1 Jan. Mortgage for £500 to I. D. of Blackacre. (3) 1900, 1 Jan. Mortgage for £500 to R. R. of Whiteacre.
(4) 1905, 1 Jan. Mortgage for £500 to F. E. of Greenacre. We will assume that I. S. sells Blackacre for £1,000 which satisfies bis debt. I. D. will then be entitled to stand in the place of I. S. against Whiteacre and Greenacre to the value of Blackacre (i. e. up to £1,000), and assuming that the value of Whiteacre and Greenacre is sufficient to satisfy I. D., how is his £500 to be adjusted between R. R. and F. E. Under'sub-rule 3, above alluded to, this £500 must be apportioned between Whiteacre and Greenacre.
This article does not pretend to exhaust the subject of marshalling, but the writer believes that the foregoing rules suggested will be found to embody the main principles of the cases which bear on this topic, and are cited in those textbooks which treat of it.
JEREMY BENTHAM 1.
material for the study of the Utilitarians and their doctrines. Of quite recent years have been published Mr. Roylance Kent's study of the English Radicals, Sir Leslie Stephen's monumental work, and Dr. Albee's history of the philosophy, and now we have before us the first biography, within a reasonable compass, that has been published of Jeremy Bentham, the father of the sect. Mr. Atkinson says in his preface that this sketch of his (Bentham's) life and work has been published in the hope that it may induce some readers to seek a closer acquaintance with his writings.' We must express considerable scepticism as to the fulfilment of this hope. That a few of his chief writings will always be read by students of political philosophy we can well believe.
The Clarendon Press issues editions of the Fragment on Government and of the Introduction to the Principles of Morals and Legislation, while there appears to be a steady demand for Hildreth's edition of the Theory of Legislation. But even in his own time Bentham was not a popular writer. His successor John Stuart Mill, writing in 1838, six years after his death, says of Coleridge and him : The writers of whom we speak have never been read by the multitude; except for the more slight of their works their readers have been few?'; and in going on to say that they have been the teachers of the teachers,' we believe that he correctly sums up the position as far as Bentham is concerned-appreciated by students, but caviare to the general.'
We do hope, however, that even if Mr. Atkinson's book fails to realize his hopes of inducing a larger acquaintance with Bentham's writings, it will itself be widely read, and particularly by the members of the legal profession. It is a most painstaking and brightly written account of his life, and can be read with great interest by those who do not care a sixpence' for his philosophy. And the character of Bentham is one of great fascination. From earliest youth to old age (he was eighty-five when he died) he seems to have been
· Jeremy Bentham: his Life and Work. By Charles Milner Atkinson. 1905. London : Methuen & Co. 8vo. xii and 248 pp. 58. net.
• J. S. Mill's Essay on Bentham in his Dissertations and Discussions. Series i. Reprint in Routledge's New Universal Library, p. 270.
blessed with perfect health; he had no severe illness, it is not even recorded that he ever complained of indigestion! It is true that he took great care of himself. His tastes were simple, his wants few, and he never consumed anything but the smallest quantity of alcohol, though through Lord Shelburne he came to some degree in contact with the fashionable society of the later part of the eighteenth century. In middle and later life his hours of work, of exercise, and of recreation were regulated with almost mathematical accuracy. There were 'ante-jentacular’and post-prandial perambulations’; and more than that an 'ante-prandial circumgyration.' His life is thus described in a letter written by him to a friend, when he was seventy:
'During your stay in London, my hermitage, such as it is, is at your service.... I am a single man, turned of seventy; but as far from melancholy as a man need be. Hour of dinner, six ; tea, between pine and ten; bed, a quarter before eleven. Dinner and tea in society ; breakfast, my guests, whoever they are, have at their own hour, and by themselves; my breakfast, of which a newspaper, read to me to save my weak eyes, forms an indispensable part, I take by myself. Wine I drink none, being in that particular of the persuasion of Jonadab, the son of Rechab. At dinner, soup, as constantly as if I were a Frenchman, an article of my religion learned in France; meat, one or two sorts, as it may happen; ditto sweet things, of which, with the soup, the principal part of my dinner is composed. Of the dessert, the frugality matching with that of the dinner. Coffee for any one that chooses it?.'
His power of work was great, and the regulation quantity of reading and writing was performed every day from sheer love of it. Yet he was by no means a dry-as-dust with no interests or thoughts beyond 'codes' and 'utility.' He was very fond of animals, and confessed that he always enjoyed their society.' 'Love for pussies,' he declares, was the first bond of union between himself and Sir Samuel Romilly, and he and George Wilson were 'fond of mice and fond of cats; but it was difficult to reconcile the two affections.' He insisted that cruelty to animals should be made a crime, but it was fifty years before the principle was recognized in England. Bentham's favourite recreation from early life was music. Before he was seven he was ‘in possession of a fiddle in miniature, and able to scrape Foote's minuet’; and in later years he possessed a fine old organ, upon which he used to play for about an hour every day. During his visits to Bowood his violin playing was always in great request.
Mr. Atkinson's volume contains many extracts from Bentham's
C. M. Atkinson, op. cit., p. 182.
familiar correspondence, which was usually in a playful vein, and still makes amusing reading. The critics of the selfish philosophy,' as many of its opponents used to call Utilitarianism, might be recommended to read these letters to learn the character of the man who founded that philosophy. Whatever may have been the character of the system, he was assuredly the reverse of a selfish philosopher. These letters and the whole course of his life show that he possessed in an unusual measure the genius for friendship. In fact his peaceful and uneventful life might be described as a succession of friendships, and of friendships seldom interrupted and hardly ever permanently broken. To the care of his disciples Bentham owes the greatest measure of his fame. The Fragment on Government and the Introduction to the Principles of Morals and Legislation were the only considerable works that he published in his lifetime. Dumont was responsible for the Traités (Theory of Legislation), J. S. Mill for the Rationale of Judicial Evidence, and the Collected Works we owe to Bowring. Though his power of work was great, yet he could never bring himself to revise his manuscripts, and his habit of seldom working a subject out to the end, but of going off upon some side issue that suggested itself to him, made his manuscripts a heap of disjecta membra that needed all the care of an editor to reduce to a readable form. But he was the 'teacher of the teachers,' his friends and disciples were 'famous in the congregation, men of renown': and so Benthamism became known over Europe, and left indelible marks on the legislation of our own country.
Bentham was not only fortunate in his health and friendships, he was also fortunate in always having a competence, and being therefore able to give unremitting attention to his favourite work. But this, a fortunate circumstance in one sense, was in another a misfortune. He was constitutionally shy, and as he had no reason to work for his living, he never possessed more than a nodding acquaintance with either business or politics—a great disadvantage to a writer on legislation however excellent his principles might be.
Bentham never married. His one love-affair with Caroline Fox would not appear from this biography to have been a very serious matter, in fact there is not much evidence of it at all.
We propose now to briefly bring before the reader some of the more salient features of Bentham's philosophy, considered both as a system of morals and a system of legislation. As every law student knows, the central principle of Benthamism is that known as 'utility' or the 'greatest happiness' principle.
• The greatest happiness of the greatest number,' that was the ideal that moralist