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The Law of Debtor and Creditor.-New Bills in Parliament. 133 security. If the debtor gives up all his been inrolled within the time limited by the property, he shall receive a certificate from act under or in pursuance of which such award his creditors, which should relieve both his

shall have been made, shall from the time of

the execution of such award, and so as to eg. person from arrest and any future property

tablish derivative titles (if any) be as good and from his former debts. If a person obtains valid, and of the same effect in all respects as goods from another person with intent to if such award had been inrolled in the manner defraud that person, and then runs away, and within the time appointed and limited for he shall be guilty of a felony. If a bank- that purpose in the act under or in pursuance mint gives a false statement of his property, of which the same has been made. it shall be a misdemeanor, and not a felony,

2. That where any award already made and

executed under or in pursuance of any act of as now. If a debtor be about to abscondincios

cond inclosure has not been inrolled, it shall be without paying his debts, the creditor may lawful for any person or persons having or go before a magistrate and swear that he deriving title to any messuages, lands, tenebelieved the debtor is about to quit the ments and hereditaments under such award, country, and the magistrate shall be em- at his, her, or their expense, to require and powered to grant a warrant.

cause such award, with any maps or plans

annexed or relating thereto, to be inrolled in This is the general outline of the mea

any one of his Majesty's Courts of Record at

Westminster, or by the Clerk of the Peace of sure, as stated in the speech of the Solicitor the

the county, riding, division, soke, or place in General; and of many of the provisions we which the lands to which such award shall fully approve. We are for making all kinds relate are situated, to the end that recourse of property subject to debts, and for giving may be had thereto by any person or persons the creditor full power to obtain satisfaction

interested therein; for the inspection and for his fair demands : but if it is intended perusal whereof no more than one shilling to abolish all arrest for debt, not merely on

shall be paid ; and a copy of such award, when

| so inrolled, or of any part thereof, signed by mesne process, but on final execution, as

the proper officer of the Court wherein the recommended by some of the Commission- same shall be inrolled, or by the Clerk of the ers, we cannot agree to it. Nor can it be Peace for such county, riding, division, soke beneficial to the trade of the country to or place, or his deputy, purporting the same permit immediate execution on the non- to be a true copy, shall from time to time be payment of a bill. We are, however, per

made and delivered by such officer or Clerk of fectly willing that the subject shall be dis- |

| the Peace for the time being, or his deputy,

tu any person or persons requesting the same, cussed, on both sides, in our columns, and

for which no more shall be paid than shall return to it ourselves very shortly. pence for every sheet of seventy-two words;

and every award already made, whether inrolled 'Ααα αΙ ΟΙ 3r

or not, and every copy of such award when

inrolled as aforesaid, or of any part thereof, NEW BILLS IN PARLIAMENT. signed as aforesaid, shall at all times be ad. yum

mitted and allowed in all Courts whatsoever as

legal evidence. ANALYSIS OF A BILL FOR REMEDYING A DE

3. That any rule or practice requiring deeds EFECT IN TITLES TO MESSUAGES, LANDS, 1 to be acknowledged before inrolment, shall not - TENEMENTS, AND HEREDITAMENTS ALLOT

apply to any award by this act authorised to 6 TED, SOLD, DIVIDED, OR EXCHANGED,

be inrolled as aforesaid. UNDER ACTS OF INCLOSURE, FOR WANT OF |

14. That where any award already made and THE AWARD NOT HAVING BEEN INROLLED,

executed under or in pursuance of any act of OR NOT HAVING BEEN INROLLED WITHIN

inclosure shall be deposited in any parish * THE TIME LIMITED BY THE SEVERAL ACTS.

church, it shall be considered as in the custody

of the minister and churchwardens for the THE preamble recites that the awards under time being of such parish church; and where divers inclosure acts are required to be inrolled any such award shall be in the possession of with the Clerk of the Peace, and that in a great the lord or steward of any manor, to or for number of instances such awards or instru- the present or any preceding lord of which ments have not been inrolled, or have not been manor any allottment shall have been made inrolled within the time directed or required under such award, it shall be considered as in by the several acts; and by reason of such the custody of the lord of such manor for the omission the title to the inessuages, lands, I time being; and the said minister and churchtenements and hereditaments allotted, sold, | wardens, or lord, as the case may be, shall divided, or exchanged under such acts res- from time to time, upon the request of any pectively, may be considered defective: person or persons interested in any allotment '1. It is therefore proposed to be enacted, thator allotments, or otherwise, under such every award already made and executed under award, cause the same to be produced for the or in pursuance of any act of inclosure, and inspection of such person or persons, on being which has not been inrolled, or which has not paid by him, her, or thein a just and reasonable

134

Observations on Mortgage Precedents und Stamp Duties.' compensation for such production, and shall | Mr. Coventry, in his Mortgage Precedents, also cause the same to be produced for the does not adopt the “ usual form” as die purpose of being inrolled, in any Court of tinguished by Mr. Atkinson; but, in all cases, Law or Equity, or on any other occasion, for whether of a mortgage in fee or for years, and the purpose of being given in evidence, on with or without trusts for sale, uses the words being paid all just expenses.

making void the mortgage ; and in some pre5. That where any such award as aforesaid cedents with trusts, has both a proviso making shall not be deposited in the parish church of void, and a covenant by the mortgagee to rethe parish in which the lands to which such convey. award shall relate are situated, and shall not Mr. Cruise, in his Digest, agrees with neibe in the possession of the lord or steward of ther of the above mentioned authors, but any manor, to or for the present or any pre- varies the proviso according to the nature of ceding lord of which manor an allotment shall the mortgage: “ If in fee (he says), the prohave been made under such award, but shall viso in all modern deeds is, that upon paybe in the possession of any other person, it ment of the money at the time specified, the shall be lawful for any person or persons inter- mortgagee shall reconvey the estate ; and if ested in any allotment or allotments, or other for years, that the term shall cease.” As it is wise, under such award, to require the same decided (Harrison v. Owen, ) Atk. 520) that to be deposited in the parish church of the “ even strict performance of the condition will parish in which the lands to which such award not operate so as to revest the legal estate in shall relate are situated, and the person in the mortgagor," there certainly appears to whose possession the same shall be, shall, on be no utility whatever in inserting words pursuch request, deliver up the same to the mi-porting to make void the mortgage; as, after nister and churchwardens for the time being all, a reconveyance would be necessary even of such parish church, for the purpose of being in his “ Concise Forms" (in publishing which, so deposited.

his object was “to purge the common forms : 6. Provided, that nothing herein contained of all tautologous expressions and unnecesshall extend to give any greater force or va-sary provisions''), Mr. Coventry retains the lidity to any award already made and executed words making void the mortgage, which it under or in pursuance of any act of inclosure, seems might very safely have been treated as than such award would have had if this act had “ excrescences," and properly have been renot been made, except so far as respects the moved with his “pruning knife." Perhaps defect of any such award not having been Mr. Coventry, in common with his professional inrolled, or not having been inrolled within brethren, and particularly attorneys, may not the time limited by the Act under or in pur- altogether approve of that system which may suance of which the same was made.

| be termed "magie conveyancing ;” otherwise he might have suggested, that on payment of

the money secured by the mortgage, thé mortOBSERVATIONS ON MORTGAGE PRE

gaged property should ipso facto revest in the CEDENTS AND STAMP DUTIES.

mortgagor without any reconveyance, in ana. logy to the provision contained in the 26th

section of the new Bankrupt Act, by which The practitioner will have observed that there real estate passes from the commissioners and are two forms of provisoes to be found in vests in the assignees “ without any conveyance mortgage precedents, for the use of each of for that purpose.Mr. Coventry is, I think, which, on the proper occasion, different direc- the only publisher of mortgage precedents who tions have been given by different writers. In inserts, in common leases, a covenant by the a mortgage in fee, Mr. Atkinson's proviso is mortgagee to reconvey, which renders it proto this effect: “That if the morgagor, his heirs, per that the mortgagee should execute the &c. pay the mortgagee, his executors, &c. deed. Surely such a covenant is useless, and the eum, &c, on &c., then the mortgagee shall unnecessarily lengthens the deed, as it is subrelease and reconvey the premises, freed and mitted that the mortgagor's remedy to obtain discharged, &c.;" and the learned gentleman a reconveyance would, notwithstanding, be in informs us, in a note, that “when the mortgage a Court of Equity, and which remedy he is is uith Irusts for sale, the above is the usual | fally entitled to without such covenant. form of the proviso ;” but, when there are no In another, and very important respect, I such trusts, the proviso is usually as follows: I think Mr. Coventry's forms are peculiar. In his “ Then these presents shall cease, determine, trusts for sale, he inserts a provision that «all and be void.” Mr. Atkinson does not, how costs, damages, and expenses (connected with ever, state why the “usual” form of the pro- carrying the trusts into execution) shall not viso ought to be varied according to the cir-exceed in the whole the sum of and incumstance whether there are or are not trusts terest.” The sum which is not to be exceeded, for sale. Why, it may be asked, should not Mr. Coventry observes, “should be the highest the words declaring the presents to be void on which the ad valoren duty proposed to be impayment of the money on a particular day, i pressed on the mortgage deed will cover, have one and the same effect, and be equally beyond the money advanced,” and he recomproper, when the inortgage creates trusts for mends a specific sum to be mentioned for that sale, and when it confers the power of receiv purpose, because he conceives “the ad valorem ing the rents ?

duty would be payable on the aggregate

Observations on Mortgage Precedents-and Stamp Dubies.

135

amount of such sum and the mortgage mo. stamp on the mortgagee's security! If Mr., ney;" and he quotes the clause of the Stamp | C.'s view be correct with regard to the duty Act, 55 G. 3. č. 185,a which enacts, that “if payable on mortgage securities, must it not the total amount of money to be secured, or follow that all other securities (that is, a warto be ultimately recoverable upon any mort- rant of attorney or a bond,) ought to be imgage, shall be uncertain and without any pressed with an ad valorem duty, not merely on limit," the duty of 251. will attach. Mr. Co the sum owing at the time they are given, but ventry's opinion is exceedingly important, if also on a further conjectural amount, to concorrect; but, with all possible deference, I sub- sist of “ all the costs, charges, and expenses” mit, that such a construction of the Stamp Act to be incurred in enforcing such securities ? has never been sanctioned by the Bench, or It is well known to be the doctrine of the Courts, adopted in practice. If, I repeat, Mr. C.'s that the Stamp Act is to be construed liberally construction be correct, the revenue must have on behalf of the subject, so that money may lost much by a contrary construction having not be taken out of his pocket with express regulated the practice; and many mortgagees words. But does Mr. C.'s opinion coincide will find it necessary to pay for their ignorance with such a liberal doctrine? Can it for a if they wish to get their securities legally moment be supposed the legislature intended stamped, according to Mr. C.'s views. With that the mortgagee should actually calculate the exception of Mr. Coventry's forms, I have (or rather guess at) the probable amount he searched in vain for å precedent which is might incur in “ costs, charges, and expenses," framed on his principle. I cannot find one in and that such amount should be added to the which the expenses incident to the mortgage sum advanced, ad valorem paid on the aggre. trusts are estimated beforehand at a specific gate, and after all, that the parties should be sum, and added to the principal advanced, for left utterly uncertain whether the mortgagor the purpose of ascertaining the amount of ad may not have paid more duty than will ultivutorem duty. On the contrary, I have in-mately prove to have been necessary for securspected many (both counsels' MS. and pub-ing all the costs, charges, and expenses, or lished) precedents in which no specific sum too lilile, in consequence of the mortgagee is fixed upon, but the mortgagee is authorised, having incurred more costs than it was at first in the first place, to repay himself “all costs, anticipated ? Who would lend noney on charges, and expenses" connected with the mortgage, if there were any such uncertainty trusts, and then the principal money advanced attending the transaction? Would it not aland interest; and yet the ad valorem duty has ways become a very difficult point to settle been invariably paid on the sum advanced only, I between the parties as to the conjectural sum, According to Mr. Coventry's view, he would when the amount of duty would be affected advise a mortgagor to pay an ad valorem duty by it? Yet who ever heard of such a difficulty on a conjectural sum, composed of costs, attending a mortgage? I submit then, that it is charges, and expenses, which, for aught that unnecessary to add to the amount advanced, a could be yet known, may never be incurred, specific sum for costs, charges, and expenses, and consequently “ not secured or ultimately and pay duty on the aggregate. That the recoverable" upon the mortgage. The mort- | legislature intended 25l. duty should attach gagor might, very possibly, pay off principal only in those cases in which the original oband interest at the appointed time, or, very Iject of the parties avowedly was to secure an probably, punctually pay the interest; and

amount which (because they choose it shoulit surely he would deem the Stamp Act one of be left so) was, at the time of negociating the the most oppressive enactinents to be found in mortgage, “uncertain and without any limit;" the Statute Book, if, under such circumstances, but which amount, wheneverascertained, should he were obliged to pay, not merely the ad exclusively consist of money actually advanced valorem duty on the 15,0001. he had actually by the mortgagee to the mortgagor, and not of borrowed, but also the further duty on the “costs, charges, and expenses" which the mort. extra sum which the mortgagee (erróneously) I gágee might thereafter incur. Those costs, conjectured he might expend in legally com- charges, and expenses, are not either "advancpelling the repayınent of his money: for in. ed or lent” by the mortgagee to the mortgagor, stance, if Mr. Coventry were about to prepare and neither party derives any benefit from a mortgage for 15,0007., he would add to that them. In fixing a duty of 251. on mortgages amount a conjectural sum for costs, charges, I of uncertain amount, the legislature must have and expenses to be ineurred by the mortgagee: } had in contemplation those cases in which the and, instead of paying 151. ad valorem on I parties had it in their power to have fixed a 15,0001., he would pay 201., because the mort. Maximum sum to be

maximum sum to be secured; but as to costs, gage is intended to secure something more charges, and expenses, they are necessarily than 15,0001. and interest, that “ something uncertain in amount, and must remain so until more” being altogether uncertain; and it they have been incurred. It is not by the may probably turn out, that in consequence

agreement of the parties, but from necessity, of the mortgagor's timely payment nothing

that any costs are incurred at all; they form was required to be “ secured or recoverable % no part of the original mortgage transaction, bevond principal and interest. Yet the mort- | but grow out of it, and are thereby induced. gagor pays 51. as necessary to have a sufficient | The mortgagee lends a specific sum, on the re

payment of which, with interest, according to og a Should be 184.

the agreement of the parties, the mortgage

136 On Mortga je Precedents.-On the Abolition of Imprisonment for Debt. will be discharged; but if, contrary to the in- | Abolish the punishment of imprisonment, and. tent of the mortgagee, the mortgagor do not you will immediately make tradesmen (who perform his covenant for repayment, surely give long credit to foolish inexperienced young it is the doctrine both of law and equity that men) cautious. How often do we find young the mortgaged property shall be redeemable men (encouraged by rapacious tradesmen who only upon payment of principal and interest, can afford to give long credit, in the hope of and all costs necessarily incurred by the mort- realising large profits,) owe their ruin to the gagee, notwithstanding those costs were not easy method which is allowed them of getting added to the amount on which ad valorem duty into debt; nor does the grievance end here, was paid. As' to the amount of expenses a for it leads them into greater extravagancies, mortgagee would be justified in incurring, and and not unfrequently terminates in some cri. whether they are necessarily and bona fide in-minal offence, which brings them to an uncurred for the purpose of securing the re- timely end ; therefore I think if its abolition payment of principal and interest, that would will produce caution, it is quite a sufficient be for the Court to determine, when the party reason in its favour. entitled so to do asserts his right of redemp- It is said, it is the fear of imprisonment which tion.

compels many to pay who otherwise would Having discussed this question with the in- not; or, in other words, “ imprisonment tention of preventing the necessitous mort-makes men bonest.” So then, men would not gagor from paying an unnecessary amount of be honest, but for the fear of being punished duty, perhaps I may be permitted to add a few if they were not 80. Is this the character of observations on the case of a second mortgage human nature, which the subtle writer of the to a second inortgagee, subject to a prior mort-Paper to which you allude has formed? Has gage containing Trusts for sale. In mortgages he discovered that men are not honest until with trusts for sale, then, it will be remember- they have been punished for dishonesty ? Such ed that, in the event of a sale being made by logic as this I cannot comprehend; for my the mortgagee in pursuance of the trusts, it is own part, I have always considered that “a always provided, that after repaying himself man who is base enough to commit a crime, his principal and interest, and all costs, charges, is generally callous enough not to care for its and expenses incident to the sale, the surplus result ;” and if such be the case, the honest money, if any, remaining in his hands, shall be man must feel quite as agonised in mind, in paid to the mortgagor. Now, of course, a not being able to discharge a debt, as the insecond mortgagee of such property cannot terior of a prison of the iron arm of the law prevent a sale by the first, otherwise than by is likely to produce. paying him off, which might not be convenient. But it is said, that “the fear of imprison. It therefore appears to me very necessary ment causes them to pay." This is an assertion (though I never met with it in practice) that incapable of proof; it is easy to say, it is “ the after conveying 'the property to the second fear of imprisonment;" but may I not ask, mortgagee, subject to the first mortgage, the whether it is not the fear of not being able to second mortgage should contain an assign- support themselves, their wives, and families, ment, by the mortgagor, of the surplus money if they go to prison, which induces them to remaining after satisfying the first mortgage, get some kind friend to lend the assisting accompanied with a power of attorney autho. hand ; so that, in fact, in innumerable cases, rising the second mortgagee to compel the the real party who suffers from the misfor. first to pay such surplus. Without such an tunes of the debtor, is not the creditor, who assignment and power, is not the second mort- year after year has been reaping a harvest from gage clearly inefficient in the event of a sale the now insolvent debtor, but “ the kind and by the first mortgagee? The effect of such charitable friend.” Again, your correspondent sale being to divest the mortgagor of all in- admits that one honest deserving man may be terest in the property sold, and to give him in doomed to confinement, but that ninety-nine lieu a chose in action, consisting of the sur- dishonest men may escape. Now the prinplus money, if any, remaining in the hands of ciple of our law and of justice too is, that it the first mortgagee.

T. P. is better that nine hundred and ninety-nine

dishonest men should escape, than that one innocent man should be punished; so that on that score, I must submit, your correspondent

has mistaken the principles of his reasoning. ON THE PROPOSED ABOLITION OF Once more, it is said, “ that the present IMPRISONMENT FOR DEBT. system of arrest affords an opportunity of as.

certaining the solvency of a debtor in the first

instance.” This to me appears very vague; To the Editor of the Legal Observer. for I would ask, has not a creditor, and would Sir,

he not have, the same opportunity of inquiring

into the acknowledged respectability and solIn the Paper which I have before me, ante,

e: vency of an individual, whether arrest were in p. 108, it is stated, that “ the abolition of

force or not? I have generally been led to imprisonment will give greater facility for the

believe that prevention is better than cure; perpetration of fraud ;” now it appears to me

appears to me and therefore I think the creditor who inquires that the very reverse will be the consequence.

beforehand into the respectability of a party,

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stands a far better chance of obtaining payment having freehold and leasehold lands situate in for his goods, than the creditor who now the same place, devises his “ lands and teneenquires, when it is too late.

ments situate in such a place," without using In conclusion, I must submit that the pre- any more words of description, is to be consent mode is most injurious to society; it sidered as intending to pass his freeholds only, encourages badly disposed men to get into to the exclusion of the leaseholds. This was deht, and to commit the frauds (by assigning the principle laid down in the leading case of their property, &c.) to which your correspon Rose v. Bartletta. In the case of Thompson v. dent alludes; it makes men dishonest, who | Lawley b, Lord Eldon came to a conclusion otherwise would not be so ; it makes trades. which I am ready here to adopt. Where, as in men covetous as well as careless; it produces, that case, a testator having freehold and leaseor is the cause of producing, the many bank- hold property situate in the same place, devises ruptcies and insolvencies which we weekly his "messuages, lands, tenements, and herehave presented to us; and it leads to extra- ditaments," so situate, to uses which are applivagancies which terminate in ruin: whereas, cable only to freehold estates, the word “ mesif imprisonment for debt was abolished, it suages,” which in its common and natural sense, would create that cantion in tradesmen which includes leasehold as well as freehold property, would be the means of eradicating that anxiety, will be considered as synonymous with “ lands, as well as suspicion, under which they now tenements, and hereditaments,”and consequentinevitably labor.

ly will not afford an inference of intention on ALFRED B. the part of the testator which could overpower

that arising from the nature of the limitations. And so Lord Eldon in that case considered • messuages" to include leasehold as well as

freehold property. In all cases, it is agreed, SUPERIOR COURTS.

there may be circumstances which will overpower the influence to be derived from the na

ture of the limitations : these circumstances Rolls Court.

may be either words of description, importing

and including leasehold estate, or they may be DEVISE.—LBAGEHOLD PROPERTY..

extrinsic, arising from the intermixture in the A testator, having leasehold houses, which he enjoyment of freeholds and leaseholds; and used in common rith, and in extension of this particular case, arising upon those circumhis freehold house in a certain street, de stances, is to be decided by the application of vised his messuages or tenementsin that those principles. The testator here occupied street to uses applicable to freehold pro- a freehold house in Ludgate Street, and, conperty only: Held, on the grounds of the nected with it, two leasehold houses in Little intermixed enjoyment, and of the generality Bridge Street, which were used for the purof the words of description, that the lease- poses of his trade, he having shut up all comhold houses passed with the freehold. munication with Bridge Street. It is to be

observed, that the devise in question com.. The testator (the late Mr. Blades) by his will, I prises much property in different places, and duly executed, devised, among other things, to a large amount, other than that to which “ his messuages or tenements, with their ap- this question refers. In the passage of the will purtenances, situate in Ludgate Street, in the immediately preceding the description of the city of London," to uses and with limitations property now under consideration, the testator applicable to freehold estates only. In a pre-devises“ his lands and hereditaments;" and ceding clause of his will, he used the words in that immediately succeeding the devise, he “ lands and hereditaments,” and in a subse- speak of his “ freehold property ;” and in the quent clause, the words “ freehold property.” | intervening devise, the words are, “ messuages The testator had leasehold houses in Little and tenements, with their appurtenances, in Bridge Street, which he had used for the pur- Ludgate Street, in the city of London.” Hero poses of his trade, in addition to his freehold is not one word peculiarly applicable to freehouse in Ludgate Street, through which only hold property,—not one word which the testathere was access to the leasehold houses. The tor would not have used if he had meant to question now raised on the will was, whether comprise leasehold property only. Taking the those leasehold houses passed by the words of words, then, as words of description connected the devise.

with the two passages referred to, I think it is ' The question was argued by counsel for se- a reasonable inference that the testator intendveral parties last week..

ed thereby to include his leasehold property. The Master of the Rolls now gave judgment. Taking into consideration the other principle The only question was, whether leaseholds pass on which this Court has acted, namely, the by the words of devise in this will. I have, intermixture in enjoyment of freehold with since the case was argued, consulted the va- leasehold property, I think it is also reasonrious authorities upon this subject; and though able to draw the same inference; and the leaseI do not think they can be reconciled, yet the holds in question must therefore pass by the principles to be deduced from them are now to be considered as fully established. Those a Cro. Car. 292. principles amount to this : that a testator who, I b 2 Bos. & Pull. 303.

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