Statute of Wills, 32 Hen. 8, c. 1, lands of which he is seised, and as the testator had not the estate in A., which he affected to pass by his will, the subsequently acquired estate in A. would not pass. The effect would be that the devisee of estate B., and of all other the testator's estates at his death, might be able under the doctrine of election to acquire not only all other estates purchased by the testator after the date of his will, but also that estate A., as to which no intention could be inferred to transfer it to him either against the original devisee thereof or the testator's heir. That seems to be a remarkable result of the doctrine of election, and I am not clear that the Court would be driven so to exercise that doctrine in such a case. The whole doctrine proceeds upon intention so strongly that it might be possible for the heir [590] to argue in such a case that there was at least equal evidence of intention in favour of the party claiming the estate, under the express devise of it to him, and that if he had no equity to call upon the heir to convey it to him, neither could the general devisee have any such equity, and therefore the heir might claim to hold the estate. However, no such case arises here, and it is to the intention only that I have to look. The intention is manifest; that the codicil was not to alter the disposition in the will by which the after-acquired estates should be so disposed of as to put the heir to his election, but the testator shews an anxious desire to give effect to that arrangement by having the subsequently purchased estates conveyed to the trustees, so as to give them all his property, whether in hand or to be afterwards acquired. The estate has been taken out of the operation of the will and codicil by the rule of law and left to devolve upon the testator's heir; but being an estate of which the testator was seised or possessed at the time of his death, by the operation of the words of gift in the will, which put the heir to his election, it would have to be handed over to the devisee if the heir elected to take under the will, or, if he elected to take against the will, compensation must be made to the disappointed devisee.

No doubt would have arisen if the testator had sold and afterwards repurchased the estate subsequently to the date of his will, and I cannot distinguish that case from the present. The doctrine of election having been carried to the extent that an heir taking nothing under the will, as in this case, is, nevertheless, to be put to his election, I have no hesitation in saying that upon the construction of this will he must be put to his election.

With respect to the past rents, I think that the case of Hicks v. Sallitt (3 De G. M. & G. 782), and the authorities there referred to, [591] have established a rule applicable to this case. The widow married again in 1835, and she thereupon forfeited half the estate which was devised to her. It is clear that at that time a bill might have been filed to put the heir to his election, notwithstanding the question which was raised in Padbury v. Clark (2 Mac. & G. 298) whether or not a person is bound to file a bill before his estate has come into possession. A bill might here have been filed on the widow's second marriage, because one moiety of the property did then come into possession. But there were three other children besides the heir, and one of those attained twenty-one in 1840, another in 1842, and the youngest in 1851. As regards the first of the two there has been an interval of twelve or thirteen years, and in the case of the other of more than ten years, without any claim being made. I think, therefore, that their case is directly within the principle of those cases which have decided that where there has been laches the Court will not direct an account of rents prior to the filing of the bill, and this even in a case of constructive trust, as it was decided in Pettiward v. Prescott (7 Ves. 541), that no excuse could be derived from that fact. It is true that the delay there was for the longer period of nineteen years. With regard to the other child it would be very hard to hold that laches for two years would prevent his recovering; and I therefore think that, consistently with the authorities, he is entitled to his share of the rents for the whole period, and not for six years only, because the heir must be considered to have entered upon this estate as bailiff for the infant children.

The questions must be thus answered :—

1. The freehold estate at Stockwell descended to the testator's heir at law. [592] 2. The heir is, under and by virtue of the will and codicil, bound to elect whether he will take the said Stockwell estate and abandon his interests under the will, or whether he will accept his interests under the will; and if he does the latter,

he is in that case bound to convey the Stockwell estate to the trustees of the will upon the trusts thereof, and to account to the youngest child for one-eighth part of the rents and profits of the Stockwell estate between the marriage and death of the widow, and one-fourth part since her death, and to each of the other younger children for onefourth part respectively of such rents and profits, which have been received by the heir since the filing of the special case.

[592] THORNTON v. KEMPSON. April 24, 1854.

[S. C. 23 L. J. Ch. 977; 2 W. R. 399. See Ion v. Ashton, 1860, 28 Beav. 382; 54 E. R. 413; Chandler v. Howell, 1876, 4 Ch. D. 659; In re Harris, 1880, 15 Ch. D. 564; In re Christmas, 1885-86, 30 Ch. D. 550; 33 Ch. D. 332; In re Pickard [1894], 3 Ch. 710.]

Charitable Uses. 9 Geo. 2, c. 36, s. 3. Mortgage of Rates.

A testatrix bequeathed to a charity her residuary personal estate, which included, among other things, money lent upon the security of an assignment of rates under the provisions of an Act of Parliament, which also authorised the levying of such rates upon the occupiers of houses in Birmingham, to be estimated according to the real rent of such houses, and to be paid to certain collectors, and gave remedies for the recovering of such rates by summoning "the person charged " before a magistrate, who, in case of non-payment, was empowered to grant a warrant to levy the rate "by distress of the goods and chattels of the party" refusing to pay, and to sell the same, and, in default of a sufficient distress, to commit the party to prison. Held, that this security was a "charge or incumbrance affecting" real estate, within 9 Geo. 2, c. 36, s. 3, and therefore did not pass by the will.

The testatrix in this cause, by her will, dated in 1850, gave her residuary personal estate to the treasurer or treasurers for the time being of the British and Foreign Bible Society, in furtherance of that institution.

Part of the residuary estate of the testatrix consisted of two sums of £1000 owing by the commissioners acting in pursuance of an Act passed in the 9th year of Geo. 4, c. liv., intituled, "An Act for Better Paving, Lighting, Watching, Cleansing and Otherwise Improving the Town of Birmingham in the County of Warwick, and for Regulating the Police and Markets of the said Town;" one of which sums of £1000 was secured by an assignment by way of [593] mortgage in favour of the testatrix, of certain rates called the Town Hall rates, and the other was secured by an assignment of the same rates, by way of mortgage, in favour of Lucinda Kempson, a deceased sister of the testatrix.

These mortgages were in a short form provided by the Act, and purported to be assignments by the commissioners to the respective mortgagees of such proportion of the Town Hall rates, to be raised and levied, and collected by virtue of the said Act, as the sum of £1000 doth or shall bear to the whole sum which may at any time be borrowed or become due and owing, or be charged upon the credit of the same rates, to be had and holden from the 1st day of October until the said sum of £1000 with interest after the rate of £4 per cent. per annum for the same shall be fully paid and satisfied.

By his report in this suit the Master found that these sums were arising from or connected with land; and exceptions were now taken to this report.(1)

(1) The following is a short statement of the material sections of the 9 Geo. 4, c. liv., the Act referred to, under which these mortgages were made:

The 4th section of this Act appointed certain persons and their successors commissioners "for putting the Act in execution." Sect. 93 empowered the commissioners to purchase land and build a town hall thereon. Sect. 95 authorised them to raise money for that purpose, and provided, "That one or more rate or rates, for the purposes last aforesaid, and also for securing, raising and paying any moneys which

[594] Mr. W. M. James, Q.C., and Mr. Baggallay, for the exceptions, urged that these sums advanced on mortgage [595] were not interests affecting land within the 9th Geo. 2, c. 36, but were pure personalty, citing Walker v. Milne (11 Beav. 507), [596] in which a security by assignment of the rates of the Birmingham and Liverpool Junction Canal Company was held [597] not to be "a charge or incumbrance affecting" land within the 9th Geo. 2, c. 36, s. 3; Nightingale v. Goulburn (2 Ph. 594), shall or may be borrowed under the authority of this Act, for the purposes of such purchase and erection, and the interest of such moneys, and also for answering and satisfying the other purposes of this Act, in relation to the said town hall, shall be made, levied and assessed by the said commissioners, upon all and every persons or person who shall inhabit, hold, use, occupy, possess, enjoy or be entitled to any house, shop, warehouse, coach-house, stable, cellar, vault, building, workshop, manufactory, land, tenement or hereditament whatsoever, or any part or portion" thereof, “being a separate tenement situate" in Birmingham, to be collected and paid as therein mentioned, and to be called "The Town Hall rates." Sects. 96 and 97 provided that such rates should not exceed the sum of sixpence in the pound upon the rent "of the property rated or assessed;" no person to be rated who did not possess some such house, &c., of the yearly value of £15 at least, the annual value of all such houses, &c., to be ascertained by the commissioners "according to the real rent and yearly value thereof," and the rates to be paid to the collectors to be appointed by the commissioners, at such times and in such manner as they should direct, and to be paid by the collectors to the commissioners or their bankers. Sect. 98 enacted, "That, in case any person or persons charged with any rate or rates, by virtue or in pursuance of this Act, shall refuse or neglect, after demand made by the collector or collectors for the time being, to pay the money rated or assessed upon him, her or them respectively, and all arrears thereof," such person might be summoned before a justice of the peace; "and in all cases where the said rate, costs and charges shall not be paid on the return of such summons, it shall be lawful for such justice who shall have issued the same, or any other justice of the said county of Warwick, and he is hereby authorised and required (on oath being made before him of the due service of such summons as aforesaid), or in case such person or persons so refusing to pay as aforesaid shall have removed out of the said district, then, on proof of such summons having been duly issued as aforesaid, to grant a warrant or warrants, under his hand and seal, authorising and directing such collector or any constable or constables, headborough or headboroughs, beadle or beadles, to levy such rate or rates respectively, and all arrears thereof, and the expenses of the summons and of the warrant, by distress of the goods and chattels of the party so neglecting or refusing; and if within five days after such distress or distresses shall be made, the said respective rates, and all arrears thereof shall not be paid, together with the costs and charges of taking and keeping the same, it shall be lawful for such collector, constable or constables, headborough or headboroughs, beadle or beadles, to cause the said goods and chattels, or a sufficient part thereof, to be appraised and sold, rendering to the said person or persons the overplus, if any, after deducting the said rates or assessments, and all arrears thereof, and the reasonable costs and charges attending such distress and sale, which costs and charges, in case of dispute, shall be settled and ascertained by one of His Majesty's Justices of the Peace for the said county of Warwick, and, in default of such distress, it shall be lawful for any justice or justices to commit such person or persons to the common gaol or house of correction for the said county" for six months, or until payment of the rate

and costs.

Sect. 100 enacted, "That, in case any person or persons shall remove out of or from, or quit the possession of, any house, building, land, tenement or hereditament, or part of a tenement, before any rate or rates to be charged thereon by virtue of this Act shall be paid and discharged, and if any person or persons shall enter into the occupation of any house, building, land, tenement or hereditament, or part of a tenement, out of or from which any person or persons shall have removed before such rates or rates shall have been paid and discharged, then and in every such case the person or persons so removing out of or from, or quitting possession of, and the person or persons entering into the occupation of, any such house, building, land, tenement or

Ashton v. Lord Langdale (15 Jur. 868), in which a mortgage of a railway company's undertaking, rates and tolls was held to be within the Act, the "tolls" being plainly an incumbrance on land; Sparling v. Parker (9 Beav. 450), where shares in a gaslight and dock company, which possessed real estate for the purposes of their undertaking; Myers v. Perigal (2 De G. Mac. & G. 599), in which shares in a joint stock bank similarly circumstanced were held not to be within the Act; The King v. Bate (3 hereditament, or part of a tenement, shall be respectively subject and liable to the payment of all such rates, in proportion to the time that such person or persons respectively shall have possessed or occupied the same respectively, in the same manner as if the person or persons so removing or quitting as aforesaid had remained in the possession and occupation of such house, building, land, tenement or hereditament, or part of a tenement, or the person or persons so entering into the occupation thereof had been originally rated and assessed in such rates, which proportion shall, in case of dispute, be settled by any Justice of the Peace for the said county of Warwick, whose determination shall be final."

Sect. 103 enacted, "That where any house, building or tenement, in respect whereof any rate shall be made, shall be let out in apartments by the lessee, tenant or landlord, any one or more of such lodgers may be deemed the occupier or occupiers thereof, for the purposes of this Act, and every such lodger who shall pay any such rate or any part thereof, or from whom the same or any part thereof shall be recovered in pursuance of this Act, shall and may deduct the same from and out of the next rent due and payable from him, her or them to such respective lessee, tenant or landlord, and the receipt for such payment shall be a sufficient discharge for such lodger or lodgers to his, her or their landlord, for so much money as he, she or they shall pay or shall be levied on him, her or them by virtue of this Act: Provided always, that no such lodger or lodgers shall at any time be required to pay, or be subject or liable to pay, any greater sum for or towards the discharge of the said rates or any of them, or the arrears thereof, than the amount of rent actually due and payable by such lodger or lodgers to the lessee, tenant or landlord of the premises occupied by him, her or them."

Sect. 105 provided, "That, when a sufficient distress cannot be found, it shall be lawful for the said commissioners to bring, or cause to be brought, in the name of their treasurer or clerk, or of any one or more of them, the said commissioners, any action or actions of debt or any special action on the case for all or any of the rates to be made or composition to be paid by virtue of this Act."

Sect. 116 enacted, "For the more speedily raising of money for erecting and maintaining the said town hall and carrying the purposes of this Act in respect thereof into execution, be it further enacted that it shall be lawful for the said commissioners, from time to time, to borrow and take up at interest such sum or sums of money as they shall judge necessary, upon the credit of the rates to be made, levied and collected by virtue of this Act, called the Town Hall rates, and by writing under their hands and seals to assign all or any part of the said rates or assessments to such person or persons as shall lend or advance money thereon, or to his, her or their trustee or trustees, as a security for the principal moneys to be advanced, with lawful interest for the same; and the charges and expenses of such assignment to be made as hereinafter mentioned shall be, from time to time, defrayed by the said commissioners out of the money hereby authorised to be raised." And sect. 107 prescribed a form in which such mortgage was to be made, which was the form adopted in this case.

Sect. 120 enacted, "That the moneys to be produced from the said rates to be called the Town Hall rates, and to be borrowed or advanced upon mortgage or at interest upon the credit or security of the said rates, and all other moneys relating to the said town hall to be received by the said commissioners by virtue of this Act, shall be applied, in the first place, in paying and discharging one-fourth part of the expenses attending the obtaining and passing of this Act; and, in the next place, in paying, from time to time, the interest of the principal money to be borrowed as aforesaid, and in carrying into execution the several purposes of this Act in relation to the said town hall; and the residue thereof shall, from time to time, be applied in paying off the principal moneys to be borrowed in manner aforesaid."

Price, 341), where securities upon the credit of the parish rates under the 35th Geo. 3, c. 73, and 53 Geo. 3, c. 163, were held not to be chattels, but to come within the Statutes of Mortmain, the rates in that case by the 192d sect. being actually charged upon untenanted houses; and Finch v. Squire (10 Ves. 41); and referring to the various sections of the 9 Geo. 4, c. liv., the Act under which the mortgages were made, which are stated shortly in the note.

Mr. C. Roupell, for the executors.

Mr. Rolt, Q.C., and Mr. Cole, contrà, were not heard.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I have considered this question, and I think that the cases cited shew clearly that these mortgages are affected by the

statute.

The ground of Sir W. Grant's decision in Finch v. [598] Squire (10 Ves. 41) was that, in truth, when a person is charged in respect of his occupying a piece of ground, it is a charge upon the land itself. Suppose it was provided that the owner of a certain farm should always pay towards the support of a church or hospital a particular yearly sum, and no remedy was given against the land, but only an action for debt against the owner, and a right of distress upon his goods and chattels (the largest words used in the 9th Geo. 2, c. 36, are "any charge or incumbrance affecting or to affect" real estate), it would be a very strong construction to say that the land was not "affected" by its being the necessary consequence of a man's entering into possession of it that the moment he did so he would become bound to contribute to the maintenance of a particular church or hospital. Independently of any question of political economy, the land itself must be considered materially affected by the owner being subject to such an obligation. It would not be possible to let it upon the same terms as if there were no such charge. The burthen is tied to the estate, for the moment a man obtains possession of it he incurs the liability by virtue of his possession.

I think that these rates come within precisely the same principle. I agree that the provision in the 103d section of this Act, that a lodger may deduct the rate from his rent, is only a mode of realising the charge upon the property. But the landlord loses so much rent, though the occupier is the person assessed, and therefore the land itself is affected.

It was generally thought, before the recent decisions, that any share or interest in any company which received profits out of land was within the Act. The Court of Exchequer, however, in Bligh v. Brent (2 Y. & C. Exch. 268), held that the holder [599] of such a share had no interest in land; but that, being a shareholder in a corporate body, his right as such never could become a right or interest in real property; it was only a right to receive a share of profits from the corporate body. So that if it be a share in a corporation it does not matter what the nature of their property may be. I think that the case of Myers v. Perigal (2 De G. Mac. & G. 599) goes further. When the company is not a corporation the shareholders' interest may possibly, on the dissolution of the partnership, be an interest in land; but it was held in that case that, if the company be a trading company, such an interest is not in the nature of real property. For instance, if the company were a brewing company, not incorporated, possessing public-houses and other property of that kind, such houses and property could not be considered to be real estate within the Act.

It is said that these mortgages are by assignment of the rates when collected; and that the commissioners are the persons to collect them, and must be taken to have them in their hands in the shape of money at the time of the mortgage, and thus the mortgagee cannot have an interest in property in the nature of a charge affecting the land itself, but only affecting the money so in the hands of the commissioners. But I do not think that view to be correct. When commissioners have the power of raising rates I can only consider them to be like those corporate bodies who have the power of collecting rates, tolls and dues; and if such a corporation mortgage the whole fund they pass all their interest, including their right of raising it, out of the land; and that was mainly the ground of the decision of the Lord Justice Knight Bruce, when Vice-Chancellor, in the case of Ashton v. Lord Langdale (15 Jur. 868). Here the commissioners have a direct in-[600]-terest in the rates collected or to be collected, and it is an interest essentially affecting land. They have mortgaged