REAL ESTATE CHARGES' ACT.

If, then, the will should contain no intimation of an intention to the contrary, AN important alteration in the Law will the derisee of a mortgaged estate is entitled take place on the 1st January, 1855, in re- to have the incumbrance discharged out of gard to mortgages on the estates of de- the following funds:-1. The general perceased persons. According to the present sonal estate. 2. Lands expressiy devised law, the equity of redemption of a mort- for the payment of debts. 3. Lands degaged estate is alienable by the mortgagor scended to the heir. 4. Lands devised and descends to his heir or devisee. The charged with the debts.3 Such is, and will mortgagor, in fact, is deemed the owner of be, the state of the law on this subject up the estate, subject to the mortgage. On to the 31st instant inclusive. his decease, the lands will devolve on the heir or devisee; and the mortgage debt will be payable out of the personal estate of the mortgagor.

The Courts require very clear expressions in order to fasten the incumbrance on the devisee or legatee of property. Thus, a devise of lands, subject to the mortgage or incumbrance thereupon, does not so throw the charge on the estate as to exempt the funds; which by law are preferably liable; the testator being considered to use the terms merely as descriptive of the incumbered condition of the property, and not for the purpose of subjecting his devisee to the burthen.1

By the 17th and 18th Vict. c. 113, which received the Royal Assent on the 11th of August last and will come into operation on the 1st January, 1855, reciting that it is expedient that the law whereunder the real and personal assets of deceased persons are administered should be amended, it is provided as follows:

That after the 31st December, 1855, when any person shall die entitled to any estate or interest in land or other hereditaments which at the time of his death shall be charged with the payment of money by way of mortgage, and shall not by his will, deed, or other document have signified a contrary intention,-the heir or devisee. shall not be entitled to have the mortgage debt satisfied out of the personal estate. But the land so charged shall be primarily liable to the payment of the mortgage

Even where the property devised "subject to the mortgage was given upon trust for sale, and the proceeds were to be applied in the first instance in payment of the mort gage debt, it was held, that, as it appeared on the whole will that the testator did not 32 Jarm. Wills, 554. In Howel v. Price, 1 intend to exonerate his personal estate from P. Wms. 290, it was held that the personal the mortgage debt, the devisees of the re-estate was liable to pay the mortgage; and if sidue were entitled, under the general rule, the mortgagee had died and the mortgagor to have the personalty applied in exonera- came to redeem, he must pay the money to the executor, and not to the heir. In King v. tion of the mortgaged estate. King, 3 P. Wms. 358, it was decided that the heir of a mortgagor can compel the application of the personal estate to pay off a mortgage, notwithstanding there was no covenant from the mortgagor for the payment of the money.

See 2 Jarman on Wills, 553, and the cases there cited.

Wythe v. Henniker, 2 M. & K. 635. Vol. xlix. No. 1,399.

K

Real Estate Charges' Act.-Dishonoured Bills of Exchange Bill.

debt, every part bearing its proportionate

Dishonoured Bills of Exchange Bill.

protest thereon until such holder shall apply to and obtain the fiat or order of such Court or a Judge directing the registration of such bill or note and protest.

6. The registrar of protested bills of exchange and promissory notes shall cause to be made a seal of the said register office, and shall cause to be sealed or stamped therewith every bill of exchange, promissory note, and protest which shall be produced to him for the purpose of registration under this Act, and also every proceeding issued, entered, or taken under the provisions of this Act; and all certified copies of entries purporting to be sealed or stamped with the seal of the said register office shall be received in evidence without any further proof or evidence of such entry.

155

personal service on any of the parties against whom it issued, and either that the order has come to the knowledge of such party, or that he wilfully evades service of the same, and that such order has not been complied with, it shall be lawful for such Court or Judge to direct that execution shall issue as if personal service had been effected: provided always, that in case such service shall not be made on all the parties against whom such order shall be directed, such service shall nevertheless be good as against any party or parties upon whom service shall be actually made, and execution may issue against him or them, or against any party or parties with regard to whom such Court or Judge shall direct execution to issue, as if personal service had been effected.

7. The order shall be endorsed with the 12. In case any party to a dishonoured bill name and place of abode of the attorney actu- of exchange or promissory note against whom ally suing out the same; and when the attor- the holder of such bill or note wishes to proney actually suing out any order shall sue out cecd under the provisions of this Act but is rethe same as agent for an attorney in the siding out of the said jurisdiction, it shall be country, the name and place of abode of such lawful for the said Court of Common Pleas or attorney in the country shall also be endorsed Judge on application by such holder to direct on the said order; and in case no attorney that an order for payment shall issue, in the shall be employed to sue out the order, then it form contained in the Schedule to this Act anshall be endorsed with a memorandum ex-nexed marked No. 2, which order shall bear pressing that the same has been sued out by the endorsement contained in the said form, the plaintiff in person, mentioning the city, purporting that such order is for service out town, or parish, and also the name of the hamlet, street, and number of the house of such plaintiff's residence, if any such there be. 8. Every attorney whose name shall be endorsed on any order issued by authority of this Act shall, on demand in writing made by or on behalf of any party against whom such order has issued, declare forthwith whether such order has been issued by him or with his authority or privity, and if he shall answer in the affirmative then he shall also declare in writing the profession, occupation, or quality, and place of abode of the holder of the bill or note on whose behalf such order has been issued, on pain of being guilty of a contempt of the Court; and if such attorney shall declare that the order was not issued by him, or with his authority and privity, all proceedings on the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the Court or a Judge.

9. Any order for payment of a bill or note obtained under this Act may be served in any county.

10. Where any of the parties against whom such order has issued is a corporation aggregate, such order, in so far as such corporation is concerned, may be served on the head officer, clerk, treasurer, or secretary of such corporation.

11. The service of such order shall be by serving a copy thereof personally upon the party or parties against whom it is directed, wherever it may be practicable so to do; but it shall be lawful for the party who has obtained such order to apply from time to time, on affidavit, to the Court or to a Judge, and in case it shall appear to such Court or Judge that reasonable efforts have been made to effect

of the jurisdiction of the Court; and the time for payment of such bill or note in such order shall be determined by such Court or Judge, and with reference to the distance from England of the place where the party against whom such order has been obtained is residing; and it shall be lawful for the Court or Judge, upon being satisfied by affidavit that the order was duly served on the party against whom the same issued, having regard to the time allowed to such party for making payment of the bill or note on which such order issued, and that such order has not been complied with, to direct that such order shall, at the expiration of the time to be allowed, have the effect of a judgment within the jurisdiction of such Court.

13. Any order for service within the jurisdiction may be issued and marked as a concurrent order with one for service out of the jurisdiction, and an order for service out of the jurisdiction may be issued and marked as a concurrent order with one for service within the jurisdiction.

14. It shall be lawful for the party who has been served with any order for the payment of a bill of exchange or promissory note as aforesaid, at any time before execution levied, or before any writ of fieri facias, levari facias, or elegit issued on such order or judgment has been fully executed, to apply to the Court or a Judge to stay execution, which application must be supported by an affidavit disclosing what would constitute a legal or equitable defence to an action on the bill or note against the party seeking to stay execution, or facts which according to law would make it incumbent on the holder of such bill or note to prove in an action thereon that he gave a valuable consideration for the same, or such other facts

156

Dishonoured Bills of Exchange Bill.

as the Court or Judge may deem sufficient to stay proceedings or for the making of such other order as hereinafter provided: provided always, that if the party served with such order shall be arrested on a writ of capias ad satisfaciendum issued on such order or judgment, it shall be lawful for him, at any time before he is discharged from custody. to apply to the Court or a Judge to set aside such writ, and to discharge him from custody, and to stay all further execution, which application shall be supported by affidavit as aforesaid.

15. In any of the said cases, if the Court or Judge shall think that such legal or equitable defence has been disclosed, execution may be stayed, or the party discharged from custody and execution stayed, as the case may be, or an issue in fact directed to be tried by the parties, or a special case to be stated by them for the opinion of the Court, in the same manner as if the question of fact or of law so directed to be tried or stated had been raised by consent of parties, without pleading under the provisions of the Common Law Procedure Act, 1852, or such other order made as to the Court or Judge shall seem meet; provided always, that in the proceedings in any issue or special case to be directed under this Act, the holder of the bill or note shall be plaintiff, and the party seeking to stay execution defendant; and the Court or Judge in any of the cases aforesaid shall have power to direct upon what terms, as to security for costs or otherwise, such issue shall be tried, or special case stated, or other order made as aforesaid.

17. The costs of such issue in fact or special case shall be in the discretion of the Court.

18. Upon the finding of the jury on any such issue in fact the order for the payment of the bill or note shall be forthwith discharged, or execution shall forthwith be issued thereon, according to such finding, unless the Court or a Judge shall otherwise order, for the purpose of giving either party an opportunity for moving to set aside the verdict or for a new trial; and upon the judgment of the Court in any such special case the order for payment shall be forthwith discharged, or execution shall forthwith proceed thereon, according to such judgment, unless proceedings in error be taken by either party: provided always, that if the plaintiff has been discharged from custody by order of the Court or a Judge, such discharge shall not be a satisfaction of the debt due by such plaintiff on the bill of exchange or promissory note on which the order for payment originally issued.

19. No privilege shall be allowed to any attorney or solicitor to exempt him from the provisions of this Act.

20. Nothing in this Act contained shall be construed or taken to interfere with or affect any remedy which is now competent to the holder of or to any party to a bill of exchange or promissory note at Law or in Equity, nor be applicable to any bill of exchange or promissory note for a sum not exceeding 154.

neral rules and orders for the effectual execution of this Act in the said Court as in their judgment shall be necessary or proper, and to establish a table of fees to be allowed to notaries-public for noting and protesting bills of exchange and promissory notes, and fixing all other costs to be allowed for and in respect of the matters herein contained, and to amend or alter such tables of fees from time to time.

21. It shall be lawful for the Judges of the Court of Common Pleas, or any three or more of them, of whom the Chief of such Court shall 16. Within six days after such issue or spe-be one, from time to time to make all such gecial case has been directed, or such further time as the Court or a Judge shall appoint, the party seeking to stay execution or to be discharged from custody shall give security for the payment of the bill or note, and interest thereon, and for the costs of protesting and registering the bill or note, and of the order and service of the same, and also for the costs of trying the issue or of the special case, and proceedings thereon, or pay into Court a sum 22. The registrar who may be appointed of money which shall be deemed sufficient by under this Act shall be remunerated by way of such Court or Judge to abide the event of salary, to be fixed and appointed by the Comsuch issue or special case, otherwise execution missioners of her Majesty's Treasury; and shall proceed as if no such issue or special case such salary, and all the expenses of the office had been directed: Provided always, that the of registrar, shall be paid and payable out of Court or Judge may direct that such security the fees to be received by the registrar; and shall not be required where the party applying all the provisions contained in the 73rd chapfor a stay of execution or discharge from cus-ter of the 15 & 16 Vict., with respect to the tody can show to the satisfaction of the Court or Judge, upon affidavit, that his alleged signature to the bill or note has been forged, or that circumstance exist which affect the title of the holder with fraud, or that any other circumstances exist which, in the opinion of the Court or Judge, may render such security unnecessary; and in such case it shall be lawful for the Court or Judge, in its or his discretion, to direct that the holder shall find security for the defendant's costs of trying such issue or of such special case and proceedings thereon, or pay into Court a sum of money which shall be deemed sufficient by such Court or Judge to abide such event as aforesaid.

preparation of a table of fees, and to the entry thereof, and to the account to be rendered to the said Commissioners, and all the powers conferred by the said Act on the said Commissioners with respect to the officers of the Court there mentioned, and with respect to fees, salaries, allowances, and accounts, shall extend to and apply in every particular in the said Act contained to the officer to be appointed under this Act as registrar of protested bills of ex

1 This looks very much like an admission that the proposed new remedy will be more costly than the present.-ED.

Dishonoured Bills of Exchange Bill.

change and promissory notes: provided always, that during the first year of office, and until the said Commissioners have fixed and appointed the salary to be taken, the registrar shall be entitled to apply the fees to be received by him in payment of such salary, and of such expenses of the office as the said Commissioners may provisionally appoint and approve

of.

23. All new or altered writs and forms of proceedings which shall be ordered and sanctioned by the Court of Common Pleas under the authority of this Act shall have the same force and effect as all other orders and rules of the said Court.

57

vided always, that if any person shall forge the signature of the deponent or the signature or seal of any such consul-general, consul, viceconsul, or consular agent to any such affidavit, or shall use or tender in evidence any such affidavit with a false or counterfeit signature or seal thereto knowing the same to be false or counterfeit, he shall be guilty of felony, and shall upon conviction be liable to imprisonment for any term not exceeding three years nor less than one year, with hard labour; and every person who shall be charged with committing any such felony may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence may be laid and charg24. Every protest of a bill of exchange or ed to have been committed, in the county promissory note shall, for the purposes of re- or place in which he shall be apprehended gistration under this Act, be received by the or be in custody; and every accessory before registrar of protested bills of exchange and or after the fact to any such offence may be promissory notes without any evidence being dealt with, tried, and, if convicted, sentenced, required as to the signature or seal to such and his offence may be laid and charged to protest: provided always, that it shall be com- have been committed, in any county or place petent for any party to a bill of exchange or in which the principal offender may be tried: promissory note, to apply for and obtain a sus- provided also, that if any person shall wilfully pension of execution as hereinbefore provided and corruptly make a false affidavit before such on the ground that such bill of exchange or consul-general, consul, vice-consul, or consular promissory note has not been duly presented, agent, every person so offending shall be deemand the Court or Judge may if not satisfied re-ed and taken to be guilty of perjury, in like quire further proof that the presentation alleged in the protest has actually been made by the notary public by whom such protest shall have been made, or by some clerk of or apprentice to such notary public, or by some other person acting in his behalf in default of a notary public. 25. In any proceedings under this Act, on any bill of exchange or promissory note, the defendant may, at any time before execution levied, apply to the Court or to a Judge, on affidavit, showing that the bill of exchange or promissory note on which such proceedings have been taken, or his signature thereto or thereon, was obtained from him by any menaces, force, or false pretence, or other fraudulent means, or that such bill or note has been fraudulently appropriated or disposed of, and thereupon such Court or Judge may order the said bill or note to be forthwith deposited with the registrar of the Court to abide the further order of the Court or Judge, and may further order that all proceedings thereon shall be stayed until the plaintiff shall have given security for the costs thereof.

manner as if such person had wilfully and cor-
ruptly made such false affidavit in England be-
fore competent authority, and shall and may be
dealt with, tried, and, if convicted, sentenced,
and his offence may be laid and charged to
have been committed in any county or place in
which he shall be apprehended or be in custody
as if his offence had been actually committed
in that county or place.

27. The word "holder" shall be taken to include any party or parties who shall, under the custom of merchants, have paid suprà protest any bill of exchange or promissory note for the honour of the drawer of such bill of exchange or of any indorser on such bill of exchange or promissory note, and the word "Judge" shall be held to mean and include any Judge of the Superior Courts of Common Law.

28. In citing this Act in any instrument, document, or proceeding, it shall be sufficient to use the expression "The Summary Execution on Bills of Exchange Act, 1855."

A.D. 18

Το

&c.

26. Any affidavit for the purpose of proving service of any order for the payment of any dishonoured bill of exchange or promissory On the day of note issued under this Act against any person In the Common Pleas. residing out of her Majesty's dominions, or in the county of service of notice of such order, or for the pur- VICTORIA, by the Grace of God, &c., in the county of pose of making any application to the Court or C. D., of a Judge under this Act, may be sworn before E. F., of any consul general, consul, vice-consul, or con- (England to wit). A. B. in his own sular agent for the time being appointed by her proper person [or by G. H., his attorney] apMajesty at any foreign port or place; and every peared and craved that the protest underwritten affidavit so sworn by virtue of this Act may be should be recorded in the register of this Court used and shall be admitted in evidence, saving for protests of bills of exchange and promissory all just exceptions, provided it purport to be notes for execution, according to the "Sumsigned and sealed by such consul-general, mary Execution on Bills of Exchange Act, consul, vice-consul, or consular agent: pro- 1855," which was accordingly done, as follows: