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relied upon in the judgment of the Court in Howard v. Shaw, as supporting their view, the one Smith v. Martin, (9 ̊M. & W. 304,) in the Court of Exchequer the other, Bramah v. Roberts, (1 Scott, 350,) in the Queen's Bench, were both referable to the particular pleadings before the Courts. In the former, the defendant pleaded fraud-the plaintiff, that he had no knowledge of it when he took the note; the issue then was, as to the knowledge of the fraud, not whether there was any. p. 307, Alderson, B., says, in answer to an argument at the bar, “ Assuming that the circumstances of fraud alleged in the plea are admitted as facts by the replication, how do they afford prima facie evidence of the plaintiff's knowledge of that fraud. When a plea states facts amounting to fraud, and alleges that the plaintiff had knowledge of them, the issue, according to your argument, is on the plaintiff; then, suppose be proves consideration, which way ought the verdict to be? His having given consideration, proves nothing conclusively as to his want of knowledge of the fraud." In the latter case, the ques tion arose on a demurrer to the replication, which denied the fraud, and stated generally that the plaintiffs had given consideration-i. e. "for advanced by and due and owing to them" a state of pleading which did not fairly raise the question for which it was relied upon as an authority. In answer to the fraud alleged in the plea, the plain. tiff replied, "I have given consideration;"—which, if proved, would in any case be a sufficient answer to the allegation of fraud, unless he was without notice of it. The only question for the Court was, whether he should not have gone further, and set out that consideration more fully, which they thought he was not bound to do.

Court Papers.

Chancery.

LIST OF CAUSES.

Clarke v. Clarke
Meagher v. O'Meara
Smyth v. same
McFarlane v. Campbell
Elrington v. Att.-Gen.
Kelly v. Walcott

Kelly v. Walcott

Siree v. Moore

Gt. S&W. Ry. Co. v. Lyons
Wilson v. Wilson
Brownrigg v. Cruikshank
Henry v. Campion
Moorehead v. Rutherford
Workman v. Walker
Gregg v. Marquis Donegal
Onge v. Onge
Same v. Molloy
Phibbs v. Irwin
Law v. Stafford
Cantwell v. Martin
Johnston v. Bryce
Warner v. Macrory
Johnston v Earl Glengall
Cooke v. Scott
French v. Maunsell

moneys

Thompson v. Ponsonby
Power v. Drake
Nixon v Morgan
Fawcett v. Davis
Perrin v. Dolan
Comerford v. Corley
Sheppard v. Sullivan
Earl Shannon v. Ede
Farrer v. Whaley
Same v. Coote
Graham v. Stuart
Carey v. Carey
Same v. same
Taylor v. Jackson
Barry v. Cronin
Cloughly v. Jameson
Kirkwood v. Lloyd
Cochran v. Brown
Perrott v. Plummer
Calvert v. Calvert
Burke v. Ouseley
Purcell v. Purcell
Collins v. Gray
Fulton v. Walker.
Same v. Woodward

Vicars v. Gale
Scanlan v. Towers
Dunscombe v. M'Carthy

O'Ferrall v. Arthur
Harshaw v. Kidd
Campbell v. Hackett
M'Neill v. Sharpe
Lupton v. Stevenson
Montgomery v. Stevenson

Jones v. Curtis
Woodroofe v. Vero

Edwards v. Edwards

De Morrin v. Henry
Reid v. M'Neale
Guiry v. O'Loughnane
Hall v. Williams
Little v. Crumly
Same v. same

Marq. Donegal v. Crommelin
Bates v. Rea
Burke v. Dolphin
Ahearne v. Scannell
Peyton v. Lloyd
Crozier v. M'Morran
Magill v. Moore

Greene v. Stoney
Kelly v. Murphy
Murphy v. Murphy
Kelly v. Briscoe

Irvine v. Irvine
M'Veagh v. Norton

Keller v. Burrowes
Kelson v. Lewis
Verschoyle v. Hamilton
Brooke v. Horner
Booker v. Murphy
Bolton v. Loughnane
Stuart v. Buchanan
Johnson v. Mason
Christy v. Marston
Donnelly v. M'Clintock
Ward v. Driscoll
Ahern v. Daly

Haldane v. Hosford
Lewis v. Earl Charleville
Bagnall v. Horne
O'Donnell v. O'Donnell
Hagan v. Griffith
Whelan v M'Donald

M'Creight v. M'Creight

Cormick v. Wall
Eyre v. Wall
Smith v. Cooke
Eyre v. Donelan
Hazlitt v. Stewart
Barton v. Whelan
Com. Ch. Beq. v. Archbold
Stewart v.
Marquis Donegal
Ruskell v. Church
Brabazon v. Lord Lucan
O'Keefe v. Lanigan
Hornibrooke v. Ware

Marquis Donegal v. Dunbar Maher v. Lenigan
Corker v. Coppinger
Simcocks v. Reed
Simcocks v. Moody
Radcliffe v. Boyle
Mendham v. Molloy

Maher v. Smith
Bentley v. Burke
Piers v. Piers
O'Brien v. Bernard.

26th April, 1849.

ABSTRACT OF A BILL FURTHER TO
FACILITATE THE SALE OF INCUM-
BERED ESTATES IN IRELAND.*

Note The words printed in Italics are proposed to be inserted in committee.

SEC. I. Whereas it is expedient that further facilities should be given for the sale of incumbered estates in Ireland, be it enacted, &c., that it shall be lawful for Her Majesty by warrant under the royal sign manual to appoint any number of persons not exceeding three to be commissioners under this act during Her Majesty's pleasure and upon every vacancy to appoint some other person to such office to be styled "the commissioners for sale of incumbered estates in Ireland."

II. That the commissioners shall have a seal, and shall cause to be sealed therewith all orders, conveyances, &c, under this act and such orders, &c., or copies thereof purporting to be sealed with the seal of the commissioners, shall be received in evidence without any further proof thereof.

III. All acts, &c., authorized to be done by the commissioners under this act may be done by any two of such commissioners.

IV. The commissioners, with the consent in every case of the commissioners of her Majesty's treasury may appoint a secretary and such clerks, messen.

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gers and officers as they shall deem necessary, and

may remove same.

V. That no commissioner, secretary or other officer shall hold office for more than five years from the passing of this act, and thenceforth until the end of the then next session of parliament.

VI. That the commissioners of her Majesty's treasury may direct a salary, not exceeding £, to be paid to the commissioners under this act, and may regulate the salaries of the secretary and other officers under this act, and same, and other expenses of carrying this act into execution, shall be paid out of monies to be provided by parliament.

VII. No commissioner shall, during the continuance of his office, be elected for or sit as a member of the House of Commons.

VIII. Before entering on the execution of his office every commissioner shall take the following oath: "I, A. B., do swear that I will faithfully, impartially, and honestly, according to the best of my skill and judgment, fulfil all the powers and duties of a commissioner under an act, passed in the-year of the reign of Queen Victoria, intituled &c." And the appointment of every such commissioner, with the time when, and the name of the justice or baron before whom he shall have taken said oath, shall be forthwith published in the Dublin Gazette.

IX. The commissioners shall frame and cause to be printed and circulated, as they shall see occasion, forms of applications and directions, indicating the particulars of the information to be furnished to the commissioners on applications to them under this act, with reference to title, incumbrances, and the circumstances of the land, and such other information as, in the judgment of the commissioners, may assist them in forming an opinion on such application, and also such other forms and directions as they may deem requisite.

X. The commissioners shall, from time to time, make such general rules for regulating the course of procedure under this act, and securing the due and prompt distribution of the moneys received upon sales, amongst or for the benefit of the persons entitled thereto, and for the protection of the interests of persons under disability and of future interests, and for giving effect to this act; but no fees or sums shall, under any general rule or otherwise, be payable to any officer or person appointed under this act in respect of any proceeding under this act, save in respect of any copy or extract of any order, &c., such sum not exceeding three half pence for every 90 words, as shall be paid for the making of such copy, &c., and every such general rule shall be laid before her Majesty's Privy Council of Ireland, and by order signed by six of said Privy Council, said Privy Council may confirm or disallow any such rule, or alter, amend, or remit same to the commissioners for further consideration, and (when confirmed) every such general rule shall be enrolled in the Court of Chancery in Ireland, and when so enrolled shall be binding on the commissioners, and shall be of the same force as if enacted by the authority of parliament: provided that same may be amended, rescinded, or altered by other rules, confirmed and enrolled in like manner.

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XII. It shall be lawful for the commissioners, by summons under their seal, to require the attendance at a time and place to be mentioned in such summons of all persons they shall think fit to examine in relation to any matter before them, and require such persons to produce all deeds, &c. relating thereto, and examine such persons on oath or affirmation; and every person summoned to attend who shall fail to appear, or refuse to be sworn, or shall not answer all lawful questions, or fail or refuse to produce any such deeds, &c. in his custody, posses sion or power, shall be liable to the same penalties, &c. as any person failing to appear or refusing give evidence in any suit or matter in the Court of Chancery in Ireland, and the commissioners shall have the like powers, &c. for enforcing the attendance of persons summoned, for punishing persons failing to appear or refusing to be sworn, &c., and for enforcing all orders made by them under this act as are vested in the said Court of Chancery in relation to any suit or matter depending therein.

XIII. The commissioners may receive in evidence affidavits, and same may be made before commissioners of the Court of Chancery, or the commissioners under this act may appoint persons to take same, and to examine witnesses.

XIV. Orders made by the commissioners may be enrolled in the Court of Chancery in England, and may be enforced in the same manner as orders under the 41 Geo. 3, c. 90.

XV. The commissioners shall have all the powers and authority of a court of Equity in Ireland for the investigation of title, and for ascertaining and allowing incumbrances, and charges, and the amount due thereon, and settling the priority of same, and the rights of owners and others, and generally for ascer taining, declaring and allowing the rights of all per sons in any land or lease, in respect of which any application may be made under this act, or in the money to arise from sales under this act, but their procedure shall be according to such general rules as aforesaid, or, where same shall be inapplicable, at the discretion of the commissioners, and the commissioners may send cases for the opinion of a court of Law, and direct issues of fact to be tried by a jury, and, subject to any such general rule, the commissioners may refer to any one of such com missioners any such inquiries or matters as they may think fit, and such commissioner shall have, in relation thereto, the like powers vested in any two commissioners under this act.

XVI. The owner of any incumbrance upon land in Ireland, or any lease in perpetuity, or any lease for a time whereof not less than sixty years shall be unexpired, subject to incumbrance, may, within three years from the passing of this act, apply to the commissioners for a sale under this act.

XVII. For the purposes of this act land shall not be deemed subject to an incumbrance unless same shall affect a term of not less than fifty years abso

lute, unexpired, or a greater estate on such land, the estate sold, or, as the commissioners by general nor unless such incumbrance shall have been created rule or special order, shall direct, and on the noti by the owner of an estate of inheritance, but an in-fication by the bank to the commissioners of the cumbrance charged under a power created by an receipt of the money, a certificate, under the seal of owner of an estate of inheritance shall be deemed the commissioners, of such receipt shall be endorsed to have been created by such owner, and such lease on or written at foot of the conveyance, and on such as aforesaid shall not be deemed subject to incum- payment into bank the purchaser shall be discharged brance where same shall affect a derivative estate or from all liability as to the application of the purinterest ouly, or less than the whole estate created chase-money, and the certificate of the commissionby such lease, unless such incumbrance shall have ers shall be evidence of payment. been created by the owner of or persons entitled to the whole estate created by such lease, but any incumbrance charged under a power created by the owner or person entitled to such whole estate, shall be deemed created by such owner or person entitled. XVIII. When any incumbrances shall be subject to any limitation, or be held on trust, the commissioners may proceed, upon the application or consent of the first person entitled to the income of such incumbrance, or of any trustee thereof, or other person whose estate or interest in the incumbrance appears to the commissioners sufficient to enable him properly to apply or consent in respect of the interests of the parties interested in the incumbrance. XIX. The commissioners shall direct notice to be given to any person in such manner as they shall think fit, and hear any parties interested in the land or lease who may apply to them, and may investigate the title and incumbrances affecting same, and the state and circumstances of the land or lease, so far only as may be necessary to determine whether, under all the circumstances, it is expedient that a sale of all or any part should be made, and may, at their discretion, make an order for sale of all or any part thereof.

XX. Where a sale shall be made, the commissioners shall ascertain the tenancies of occupying tenants, and any lessees or under-lessees, subject to whose tenancies, leases or under-leases the owner or incumbrancer, applying to the commissioners under this act, may be owner or incumbrancer, and may give such notice and make such inquiries as may be necessary to secure the rights of such tenants, lessees, or under-lessees, and the sale shall be made subject to the tenancies, leases or under-leases so ascertained, and when the commissioners think fit, such sale may be made, subject to any annual charge, or such apportioned part as the commissioners think fit should remain charged thereon.

XXI. Where the commissioners make an order for sale, the land or lease shall be sold under the control of the commissioners by public sale or private contract together or in lots, and at such time and place as the commissioners think fit, and the conveyance, &c. shall be made by the commissioners, and the execution by any other party shall be unnecessary, and such conveyance shall refer to the tenancies, leases or under-leases (if any), and the charges (if any), subject to which the sale is made, and may be in the form in the schedule of this act contained, or to the like effect, with such limitations of uses and other additions, &c. as, with the approval of the commissioners, the purchaser may direct. XXII. The purchase-money, in every case, shall be paid into the Bank of Ireland to an account in the name of the commissioners, and to the credit of

XXIII. Every such conveyance upon the sale of land shall be effectual to pass the fee-simple and inheritance of the land subject to such tenancies, leases, and under-leases referred to therein as aforesaid, but save, as hereafter provided, discharged from all former and other estates, rights, titles, charges, and incumbrances whatsoever, of her Majesty, her heirs and successors, and all other persons whomsoever; and every such conveyance upon the sale of a lease shall pass the estate created or agreed to be created thereby, and remaining unexpired, subject to the rent and covenants annexed to the reversion, and to such tenancies, leases, and under-leases as are referred to in such conveyance, but save as aforesaid, and as hereafter provided, discharged from all rights, titles, charges, &c., affecting same; where any land or lease is sold, subject to any annual charge or apportioned part thereof, same shall remain payable out of such land or lease as in the conveyance, &c., shall be expressed.

XXIV. Such conveyance shall not affect any right of common or way, or other easement or rent-charge in lieu of tithes, crown or quit-rent, or charge under the drainage act, 5 & 6 Vic. c. 89, or the act amending same, 10 & 11 Vic. c. 32.

XXV. The commissioners shall have power to order the delivery to the purchaser of all leases, &c., and shall, on the application of the purchaser, issue an order to the sheriff to put such purchaser in possession of all lands not in the occupation of lessees, &c., subject to whose leases the sale shall be made, and who shall have attorned to such purchaser within a time limited by such order, and same shall be executed in like manner as a writ for the delivery of possession.

XXVI. The commissioners shall, out of the purchase money received on the sale of any land or lease under this act, pay the costs of and consequential on the application for the order for the sale, as they shall think fit, and the expenses of and incidental to the sale, and the surplus shall, after payment of such costs, &c., under the order of the commissioners, be applied in or towards payment or satisfaction of the incumbrances or charges which affected such land or lease, or part thereof, according to their priorities, and shall, subject as aforesaid, be paid to the owner, previously to such sale of such land or lease, where such owner was absolutely entitled thereto, or where not so entitled, be laid out in the purchase of land, which shall be limited and settled to the same uses, upon the same trusts, for the same purposes, and in the same manner, as the land or lease, or part sold, or such of them as shall be then subsisting or capable of taking effect; and

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XXVII. That any money so paid into bank may by order of the commissioners be invested in their name in the purchase of any stock, &c., and the dividends applied under the order of the commissioners, as the rent of the land or lease from the sale whereof the money invested has arisen, would have been applicable.

XXVIII. Whenever the commissioners direct the appointment of trustees, they may make provision for the appointment of new trustees.

XXIX. Provided that no payment towards the discharge of any incumbrance or charge, not being a payment in full, shall prejudice or affect any right or remedy of the incumbrancer, or the person entitled to the charge in respect of the balance, otherwise than as against the land or lease or part thereof sold, and no payment under this act, of or in respect of any incumbrance or charge, shall impair any right or equity of any person out of whose estate such payment shall be made, to be reimbursed or indemnified by any person, or out of any other land or estate, except so far as the commissioners under any special circumstances shall order.

XXX. That the commissioners may pay to any person entitled to any charge, not being an incumbrancer under this act, who may consent to accept same, a gross sum in discharge, or by way of redemption thereof or of a part thereof; and where part only of the land or lease is sold, may, with the consent of the incumbrancer or person entitled to the charge, charge the part not sold with such incumbrance or charge, or an apportioned part thereof, in exoneration of the money arising from the sale, and may authorize persons to release the money from any incumbrance, or relinquish their claim on such money in respect thereof, without impairing or affecting such incumbrance or charge, as to the remaining part of the land or lease originally charged, and the commissioners may invest money to meet any annual charge, where by reason of same being contingent or otherwise it shall seem proper so to do, and otherwise may make such orders for applying the money as will secure the convenient application thereof for the benefit and according to the rights of the parties interested in the land or lease or part thereof from the sale of which the same shall have arisen.

XXXI. Where any money arising from a sale is not immediately distributable, or the parties entitled thereto cannot be ascertained, or where the commissioners think it expedient, they may order such money or the securities in which same may be invested, to be transferred to the account of the Accountant-General of the Court of Chancery or

Exchequer in Ireland, or the Court of Chancery in England, in the matter of the parties interested, in trust to attend the order of such Court, and may declare the trusts affecting same so far as ascer tained by them, or the facts found by them in relation thereto; and the Court of Chancery, Chancellor, and Master of the Rolls in England and Ireland respectively, and the Court of Exchequer in Ireland, may make such order in relation to such money, &c., so transferred, as they might make in relation to any funds, &c., paid or depo. sited under the 10 & 11 Vic. c. 96, being the act for the relief of trustees, or the 11 & 12 Vic. c. 68, for extending said act to Ireland; and such money shall not be liable to usher's poundage.

XXXII. Where any lease subject to incambrance shall be sold, the commissioners may, on the application of the owner of the reversion, include in this sale the reversion, upon such terms as they shall see fit, and shall apportion the purchase-money and expenses, and the assurance may include the reversion, if the commissioner's think fit.

XXXIII. If any land or lease to be sold shall be subject to any lease or under-lease for years or lives comprising other land at an entire rent, the commissioners may apportion the rent between the land to be sold and the remainder; and where it is intended to sell part only of any lease, the commissioners may apportion the rent between the land to be sold and the remainder, and the com missioners shall direct notices to be given of any such intended apportionment to such persons as they think fit, and may hear parties in relation thereto; and after such apportionment and sale, the owners of the reversion shall have the like remedies for the apportioned rents against the lands out of which same shall be payable, and the owners and occupiers thereof as were subsisting for the entire rent before such apportionment, and all the covenants, conditions, and agreements of every lease or under-lease, except as to the amount of rent to be paid, shall as regards the apportioned parts remain in force in the same manner as if no apportionment had taken place.

XXXIV. Where any person who, if not under disability, might have applied, consented, or done any act, or been party to any proceeding under this act, shall be a minor, idiot, lunatic, or married woman, the guardian, committee of the estate, and husband respectively of such person may apply, consent, do such act, or be party to such proceed. ings as such person might have done, and shall otherwise represent such person for the purposes of this act; but a married woman entitled for her separate use, (with or without power of anticipation,) shall for the purposes of this act be deemed a feme sole, and where there shall be no guardian or committee of the estate of any idiot or lunatic, or where any person of unsound mind shall not have been found idiot or lunatic under an inquisi. tion, the commissioners may appoint a guardian for the purposes of this act, and may change such guardians, and the commissioners may appoint a next friend of any married woman, and may change such next friend.

XXXV. Proceedings under this act shall not

abate or be suspended by deaths, transmissions, or
change of interest. But in such case the commis-
sioners may, where they see fit, require notices to
be given to parties becoming interested, or make
any order for discontinuing, suspending, or carry-
ing on the proceedings, as may appear just.
XXXVI. In every proceeding under this act,
the commissioners shall have full power and dis-
cretion as to the giving and withholding costs and
expenses, and as to the person by whom, and the
funds out of which the same shall, in the first in-
stance or ultimately, be paid, repaid, and borne,
and may apportion same amongst such parties, and
in respect of interest, rents, or income, and prin
cipal or corpus, as they shall see fit.

incumbrancer, to commence any proceedings at law or in Equity for redemption, foreclosure, or sale, or to commence, take, continue, or prosecute any proceeding whatsoever under the act of the last session, "to facilitate the sale of incumbered estates in Ireland," without leave of the commissioners.

XXXIX. The commissioners shall not be subject to be restrained in the execution of their powers under this act, nor shall any person be restrained from making application under this act to the commissioners, or doing any other act, or giving any consent under this act, by order or injunction of a Court of Equity; nor shall proceedings before the commissioners be removeable by certiorari.

XXXVII. Application may be made for a sale, and an order made by the commissioners, notwithstanding any pending proceeding in a Court of Equity in England or Ireland, or any decree of such Court already made for a sale; and where it shall be shown to the commissioners that a decree for a sale has been made by a Court of Equity, the Commissioners shall, if they see fit, without further inquiry, order a sale of the land or lease decreed to be sold, and where any sale shall be made of land or lease, in respect of which there shall have been a decree, or any proceedings pend-judicial committee for that purpose, and the order ing in a Court of Equity, in distributing the money of the Privy Council shall be made according to and in their other proceedings, the commissioners the report of such judicial committee, and shall be shall have regard to the proceedings in such Court final. in relation to the priorities and rights of incumbrances and others; and where a decree has been pronounced, the commissioners may proceed upon and be guided by the declaration of and the inquiries XLII. In the construction of this act the word and proofs made and taken under such decree in "land" shall extend to manors, advowsons, rectories, relation to such priorities and rights as aforesaid, messuages, lands, tenements, rents, and hereditaand the commissioners shall, out of the money ments of any tenure, whether subject to any feearising from any sale under this act, where there farm or other perpetual rent, with or without conshall have been any such decree or pending pro-dition of re-entry for securing the same or otherwise, ceeding, make such provision for payment of costs incurred in Equity as circumstances may require, or they may order all or any part of the purchasemoney, after payment of the costs and expenses payable under the orders of the commissioners, to be paid into the Court of Equity in or under any suit or decree then pending or made.

XL. The commissioners may renew, rescind, or vary any order made by them, but save as aforesaid, and as hereafter provided, every order shall be final, provided that where the commissioners allow appeal, but not otherwise, appeal against any order may be made to the Privy Council of Ireland, within one calendar month from the making of the order appealed against, and such appeal shall be heard and reported on by members of the Privy Council, to be appointed by the Lord Lieutenant or other Chief Governor of Ireland, to be a

XLI. Any person examined before the commis. sioners, or the persons authorized by them, who shall give false evidence, shall be guilty of perjury.

or whether corporeal or incorporeal, and every undivided share thereof. And the word "estate" shall extend to any estate in Equity as well as at Law, and to the benefit of any covenant or contract for, or right of renewal. And the word "lease" shall include an agreement for a lease, and the estate or interest created or agreed to be created by such XXXVIII. When the commissioners shall order lease or agreement in the whole or any part of the the sale of any land or lease or part thereof, in land therein comprised; and "lease in perpetuity" respect of which a decree shall have been made by shall mean any lease or grant for one or more life a Court of Equity for a sale, or any proceeding or lives, with or without a term of years, or for shall have been pending, they shall by certificate years determinable on one or more life or lives, or under their seal notify to such Court the order, &c., for years absolute with a consent or agreement in made by them, and all proceedings for or in rela- any of such cases, whether in the same or in any tion to a sale under the decree of such Court shall other instrument, for the perpetual renewal of such be stayed, and upon the completion of the sale lease or grant, whether such lease shall be derived under such order of the commissioners, any re- out of the inheritance or by way of under-lease out ceiver appointed by such Court shall cease to act, of any lease or other estate. And the word "incumwith respect to the land or lease or part sold, and brance" shall mean any legal or equitable mortgage the Court may suspend or stay any other proceed-in fee or for any less estate, and also any money ings in such court, in or under any order or decree already made by such Court as the Court shall think fit, and pending any proceedings for a sale under this act, it shall not be lawful for any owner, or any person claiming to be owner within the meaning of this act, or claiming by the act of such owner or person, or by act of law, or any

secured by a trust, or by judgment, decree or order of any superior court of Law or Equity duly registered, and any legacy, portion, lien, or other charge whereby a gross sum of money is secured to be paid on an event or at a time certain, and also any annual or periodical charge, which, by the instrument creating same or by any other instrument, is made re

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