Odger's English Common Law

32 PRIVATE RIGHTS.
Thus, where the security is land, it often happens that
neither the title to nor the possession of the land is trans-
ferred to the lender ;
yet a valid charge on the land is created
in his favour as a security for the debt. For example, if the
title deeds of land be deposited "with a bank as security for a
loan, both the ownership and possession of the land remain
in the borrower. A memorandum is usually drawn up
setting out the terms of the deposit, but this is not
absolutely necessary. A charge may even arise if, without
actual deposit, the borrower gives the lender a memorandum
containing a promise to deposit the. title deeds on demand.
In either case, if the borrower fails to repay the loan with
interest, the Court will order him to convey to the lender
his interest in the land so charged.
Again, where the security consists of goods, the borrower
often wishes to remain in possession of his goods and have
the use and enjoyment of them during the continuance of the
loan. The most frequent instance of such a security is a
" bill of sale." A bill of sale by way of security 1 is a docu-
ment under which the borrower promises to repay the amount
of the loan, usually by instalments at certain fixed dates,
and empowers the lender, in case default be made in payment
of any instalment, to seize and carry away all the furniture
and other goods specified therein. Bills of sale were so fre-
quently made instruments of extortion and oppression that
they are now required to be made in accordance with a pre-
scribed form, 2 to be signed by the borrower in the presence
of a credible witness, and the loan for which the bill is given
must not be less than 30L The bill of sale must then be
registered within seven days, and an affidavit must be filed
at the same time, verifying the date, the due execution and
attestation of the bill, and the residence and occupation of
the borrower and of every attesting witness. Unless all
these formalities are complied with, the authority to seize
the goods is void.
1 There are also absolute bills of sale, which are not mortgages, but transfers of
goods.
2 This form is set out in the schedule to the Bills of Sale Act (1878) Amendment
Act, 1882 (45 & 46 Vict. c. 43).