contained in the act which that act superseded. The distinction between "stock," whatever that may mean, and other personal property, in the present bill, has no sensible object. description, and shall extend to estates at law and in To return to the definitions. "The word "stock" equity, in possession or in futurity, in any lands." shall mean any fund, annuity, or security transferable The word "possessed" is to be applicable to vested in books kept by any company established or to be estates less than life estates; and the word "entitled" established, or transferable by deed alone, or by deed is to be applicable to contingent rights and estates. accompanied by other formalities, and any share or There is another definition to which we shall presently interest therein." A mortgage may be a security transrefer; but let us first see how these words "seised" ferable by deed alone, though some mortgages may be and "entitled" are used in the subsequent enactments. transferred without deed, but cannot be transferred By sect. 3, "any person seised, possessed of, or enti- without writing. Are any, and what, mortgages intled to any land may convey" &c., the same to be used cluded? Some negotiable securities are transferable by exclusively as a site for any church, &c. By sect. 7, writing only, but are not transferable by deed. On "any person seised, possessed of, or entitled to any what principle are they excluded? The explanation land may convey or assign the same" upon any chari- is, that the draftsman had no principle or thought table trusts, subject to certain conditions. This power, in his head when he wrote down this definition, but by the definition, is given to tenants for life or years, copied it, for want of thought, verbatim from Mr. and it is given over the land-that is to say, by the Headlam's Trustee Act, 1850, where it supplies the definition, (sect. 2), over the manor, messuage, tene-place of a much more accurately expressed definition ment, or hereditament itself, and not merely the estate of the grantor therein! Of course the judges could not allow the act to have such an outrageous operation; but what are we to say of an act which requires its own interpretation clause to be set aside? We can- Sect. 3 enables any person to convey or devise land not imagine how such a blunder was committed; but to be used exclusively as the site of a church, chapel, or we can mention a very elementary rule, known to burying ground, minister's residence, library, museum, all but amateur draftsmen, the observance of which or other building to be applied for the benefit of the would have effectually prevented it, and that is, to ex-public in the promotion of literature, science, or the press a restrictive enactment in restrictive, and not in fine arts; subject to the condition that a copy of the permissive, terms. The old Mortmain Act restrained a assurance be delivered to the Charity Commissioners pre-existing right of alienation. The new act is to within one month after execution, or, in case the same take its place, and the obvious and logical course is, to be left by will, a copy of the devise be delivered to repeal the old act, and to enact in lieu of it such the Charity Commissioners within three months after restrictions as were intended. If, after repealing all the testator's death, and notice of the devise has come to that is to be repealed, it is found necessary to confer a any of the persons to whom the same has been devised. power, the power must be given in permissive terms, There is no definition of "notice," and indeed a definias where a tenant for life is to be enabled to convey tion could scarcely have added to the host of questions the fee; but when our business is exclusively to tell which would be sure to arise on the word. If we had the people what they may not do, common sense and not confined ourselves to verbal criticism, we might the ordinary forms of language lead us to negative ex- ask here why the validity of a charitable devise is to pressions. The consequence of not pursuing the plain depend on the activity or caprice of the trustee, or of course is, that additional clauses are required to express one of the trustees? Would a charity or the Attorneythe pith and substance of the act. After many wordy General have an action or any equitable remedy against clauses, telling what may be done in the way of chari- a trustee neglecting to take the necessary steps to estatable disposition, we come to two, (sects. 9 and 16), blish the devise? May not a devisee in trust disclaim enacting, (the one as to real and the other as to per- or ignore the devise? sonal estate), "that, except in the cases and under the circumstances before expressly provided for, it shall not be lawful for any person to" devote any property to charitable uses. This ignorance on the part of the draftsman of the use of language has led to some ludicrous results. For example, the 12th section authorises Mr. Headlam, or any one else, to bequeath any picture in the National Gallery, or any statue in the British Museum, to the mayor and burgesses of Gravesend-"It shall be lawful for any person, without restraint or condition, to bequeath by will any picture, book, statue, or other specific object useful for purposes of education, or calculated to promote the study or taste for literature, science, or the fine arts, to any university or college, or to any municipal corporation or other public body, or the British Museum," &c. No doubt the judges would put a curb upon these words too. But while they are before us, let us ask what "specific objects" are within their scope? At Marlborough House we have seen gold and silver plate, bracelets, and costly jewels exhibited for the purpose of promoting the study of or taste for the fine arts; and the newest work may be as useful for this purpose as the oldest. A modern waterpot from Lahore is an object of art-why not a fiddle-pattern spoon from Cornhill? Is the Court to sit in judgment on the aesthetic merits of the chattel? If not, what room for evasions! Again: is each testator limited to one single object? If so, how is this exclusion of cabinets of natural history, historical collections, libraries, manuscripts, reconciled with the spirit of the clause? By sect. 5, whenever the quantity of land given for such a site as aforesaid shall be greater than in the opinion of the Court of Chancery is requisite, or shall be greater than is actually used for the purpose, it shall be lawful for the person, who would have been entitled to the land if it had not been so given, to recover the surplus. No limit of time. Suppose that two years elapse before any steps are taken to build on or to use the site, or suppose that at any time after use there is a discontinuance of use for six months. The authority given by sect. 7 to make voluntary settlements of land to charitable uses is subject to several conditions, of which the fourth and fifth are, that the "conveyance or assignment be irrevocable, and be made to take effect immediately in possession, and that it contains no reservation of any estate or interest for the life of the grantor, or for any period having relation to the duration of the life of the grantor." Yet the power which is subjected to these conditions is expressly given to the owners of vested and contingent remainders. Then as to evasion, a grantor may not reserve the enjoyment for his own life: this implies that he may do so for the life of a wife or a child, or of any other person, and that he may do so for a term of years. Again: no reservation of a life estate to the grantor is to be contained in the charitable conveyance. This does not extend to a conveyance by A. to B. for A.'s life, and in trust for A., and then a charitable settlement by A. of his reversion in fee. Sect. 10 contains provisions respecting gifts of "stock, money due [qy. owing] on mortgage, and all forms of personal estate connected with or savouring of realty, except leasehold estates and chattel interests in land,' which are subjected to certain conditions; and by the next section, gifts of "all forms of personal property, except the particular descriptions mentioned in the preceding section," are subjected to certain other conditions. What are "forms of personal property connected with or savouring of realty?" We cannot make even a wild guess at the meaning. And why are they subjected to special regulation? Even the distinction between a gift inter vivos, and a testamentary gift, is not expressed grammatically. The phrase is, it shall be lawful for any person to give the same during his lifetime," i. e. for his life. In the case of a bequest of personalty to charitable uses, (sect. 13), the condition is imposed of a notice by the testator to the Charity Commissioners. In that of a devise of realty, as we have seen, the notice is required to be given by the devisee. The reason of the difference is not apparent. The 13th section allows charitable bequests of "every description of personal estate." A term of 1000 years is personal estate; and the words cited above from the 10th section conclusively shew that leaseholds for years are within the operation of the 13th section. It is equally clear that that construction is contrary to the intention and policy of the act. Some Jesuit must have helped Mr. Headlam to the substance of the 14th section:-" "Whensoever any money due upon mortgage of land shall be given or bequeathed upon trust for any charity, and the trustees shall become seised or possessed of the land, free from all right of redemption therein, it shall be their duty to sell the said land, and to invest the proceeds in Government securities; and if they shall omit or neglect to sell the said land within such time as a Court of equity shall deem reasonable for the purpose, they shall be liable personally for any loss that may occur upon a subsequent sale thereof, or investment of the proceeds." Let any one imagine a Court of equity assessing the price that a piece of land might have been sold for ten years ago. But if the land rises in value, which is the very case to be provided for, the trustees have no inducement to perform their duty. We must here pause for want of space. We should not complain of any lawyer or any lay member of Parliament taking up any branch of the law for amendment, if he would only employ a competent draftsman to express his ideas; and we should not be much surprised if a layman, after reading a few acts of Parliament, were to fancy that he could draw as good an act himself; but we do complain that a lawyer should give the sanction of his professional name to such a bill as this; and we trust, that much as the law of charitable gifts requires amendment, it will not be abandoned to the rude tinkering it is now threatened with. ACTIONS BY MONEY LENDERS IN THE COUNTY COURTS. THE following observations on the above subject have been submitted to the consideration of a noble and learned lord by one of the judges of the county courts: The stat. 2 & 3 Vict. c. 37, exempts from the operation of the Usury Laws bills of exchange and promissory notes not having more than twelve months to run, and all contracts for the loan of money above the sum of 10%., loans on landed security excepted. By stats. 17 Geo. 3, c. 30, and 48 Geo. 3, c. 88, bills and notes for less than 57. are legal, if the forms prescribed by those acts respectively are duly followed. And by the Stamp Acts, all such bills and notes under 40s. as may be issued without violating the pro visions of the 17 Geo. 3, c. 30, and 48 Geo. 3, c. 88, are exempt from stamp duty. The effect of all these enactments is, that a simple loan on an IO U for a sum under 40s. is subject to the Usury Laws; but a promissory note for the same amount, if made in proper form, is not so subject. Money lenders, availing themselves of this state of the law, take promissory notes for sums under 40s. at an enormous rate of interest, and sue on these notes in the county courts. The question is, whether the law should remain in this inconsistent state; and if not, what remedy should be adopted to meet the evil? Correspondence. COSTS OF PAYING OFF A MORTGAGE. TO THE EDITOR OF "THE Jurist." SIR,-Would you have the goodness to permit the following to appear in your Journal, for the purpose of ascertaining the correctness of the practice of charging in the under-mentioned case : In the town where I reside it is said to be an ancient and laudable practice, on a mortgagor desiring to pay off his mortgage debt, to be directed by the mortgagee to attend with him upon his solicitor, in whose custody the deeds have been previously deposited. On the attendance, the mortgagee's solicitor declines to part with the deeds until his charges are paid, namely, for making a list of the deeds to be signed by the mortgagor as a receipt for them, and for the attendance delivering them up. usual six months' notice of intention to pay off the In a recent case, where, on the expiration of the mortgage, the mortgagor attended the mortgagee, at his request, at his solicitor's office, and then and there paid to the mortgagee the principal and interest, the mortgagee's solicitor demanded, before he parted with the deeds, the respective sums of 6s. 8d. for the attendance, and 7s. for a list of the deeds. The mortgagor objected to pay them, but they were ultimately paid by his solicitor, who was present, to obtain the deeds, and a receipt was then indorsed on the deed, and an undertaking to reconvey signed by the mortgagee, which was subsequently done, and duly paid for. My impression was, that the charges were illegal as against the mortgagor; that if the mortgagee required assistance on receiving his principal and interest, he must pay for such assistance himself; but, on inquiry, there seems to be an opinion, that if the charges had been made out to the mortgagee, and by him paid, he could decline to part with the deeds until he was reimbursed them, and that the mortgagor could not redeem without paying them. I assume that the mortgagee was neither obliged to sign the receipt for his principal and interest and undertaking to reconvey, nor was his solicitor obliged to attend the mortgagor's solicitor professionally without being paid; but neither of these questions arise, as the former was matter subsequent to the refusal to part with the deeds; and as to the latter, the solicitor attended only as witness. The case of Wakefield v. Newbon (8 Jur. 735) seems decisive of the affair. As I cannot find anything in either of the three acts of Parliament affecting county courts authorising the issuing of plaints upon the judgments in question, I shall feel much obliged if " A County Court Judge," or any other gentleman, will enlighten me upon the subject, for it is a most important question, and one that should be thoroughly understood. The 129th section of the 9 & 10 Vict. c. 95, permits a plaintiff to have a superior court judgment for his debt, but deprives him of costs. I am, Sir, your obedient servant, Court Papers. J. B. H. EQUITY SITTINGS, TRINITY TERM, 1854. Court of Chancery. Before the LORD CHANCELLOR, at Lincoln's Inn. Friday Saturday Tuesday 6 Wednesday 7 Thursday 8 Appeal Motions and Appeals. Thursday May 25 Motions and Causes. Friday 26 Petitions (unopposed first). Saturday Short Causes, Short Claims, and General Paper. Monday.... Tuesday.. 233 29 30 31 .... Pleas, Demurrers, Exceptions, Causes, Thursday June 1 Motions and Causes. 3 ....... :{ Short Causes, Short Claims, and General Paper. Pleas, Demurrers, Exceptions, Causes, Claims, and Further Directions. Motions and Causes. Petitions (unopposed first). Short Causes, Short Claims, and Ge neral Paper. COMMON-LAW SITTINGS, IN AND AFTER 1st sitting, Wednes., May 31 2nd sitting.. Friday June 2 .. 3rd sitting.. Monday 12 EQUITY CAUSE LISTS, TRINITY TERM, 1854. The following abbreviations have been adopted to abridge the space the Cause Papers would otherwise have occupied:-A. Abated-Adj. Adjourned-A. T. After Term-Ap. Appeal-C. D. Cause Day-Cl. Claim-C. Costs-D. Demurrer-E. Exceptions-F. D. Further Directions-M. Motion-P. C. Pro Confesso-Pl. Plea-Ptn. Petition-R. Rehearing-S. O. Stand Over--Sh. Short. Before the Right Hon. the MASTER OF THE ROLLS. Chambers v. Elliott (Pl) Polard v. Pollard The Court will sit at ten o'clock every day. The causes in the list for each of the above sitting days in term, if not disposed of on those days, will be tried by adjournment on the days following each of such sitting days. }(FD, C) Webster v. Boddington (F D, (Cause) Whistler v. Smith Attorney-Gen. v. Walmsley Richards v. Curlewis (M for Tierney v. Wood (Cause) Morris v. Morris (F D, C) St. John v. Phelps (E, FD, C) Tench v. Cheese (4 titles, FD, C) Wilks v. Cowell (M for decree) Hemiker v. Charretie (Cause) Goody v. Sugden (M for dec.) Freer v. Freer (CI) Hendley v. Hendley (M for Smith v. Smith (Cause) Turner v. Strange (CI) further consideration) }(Cause) Davis . Plymsell Supplemental Bill) Wynch . Grant }(F D, C) Cofield v. Poole (M for dec.) Cofield. Anderson (M for decree) Fryer v. Rogers (Cause) Langston v. Cozens (3 titles, Cornwall v. Davies (Cl) Sh Money v. Taylor Before Vice-Chancellor Sir J. STUART. Hope v. Hope (M for decree) } (Cause) vant Chick v. Blackmore (3 titles, Dixon v. Pyner (F D, C) King v. Rees (3 tits., F D, C) Dixon v. Cooke (F D, C) Same v. Morgan (FD, C) Beavan. Lord Oxford (3 titles, Cause) Howard v. Jewell (E, F D, C) Kingsford v. Ball (F D, C) Jones v. Mathias (Cause) (Fur. con.) Straith v. Grain (CI) Before Vice-Chancellor Sir W. P. WOOD. PLEAS, DEMURRERS, CAUSES, &c. Dalrymple v. Hannah (Cl) thorne (M for decree) Same v. Rolfe Greaves v. White (Cause) Same v. Ranby} (F D, C) Sykes v. Brandt (Cause) Ashlow v. Savage (Cause) (Cause) Maniere v. Leicester (M for decree) Hoskins v. Matthews (Cause) Woollams v. Nisbett (M for decree) Tatlock v. Jenkins (Further | Sh | Dormer v. Phillips (Cl) Picton v. Beete (Cause) Forsyth v. Ellice \ (F D, C, & Cliffe v. Cliffe (M for decree) Mining Co. (Cause) Stretton v. Ashmall (Cause) Mackley. Smith (CI) Forrest v. Bowen (Cause) Gossip v. Wright (Cause) }(Can.) Maltby v. Grey (Cause) Nixon v. Masterton (M for decree) Lukey v. Higgs (Cl) |