No. I. entered on any deed bond instrument or other assurance already executed for the purposes aforesaid a like memorial of the deed bond instrument or other assurance shall be inrolled in the High Court of 17 Geo. III. Chancery; and in case the party shall neglect to inrol the same, any such judgment execution or proceeding in the action respectively shall be null and void. other grounds on which the annuity in that case was set aside. Secus as to a charge for commission by the grantee himself, being a Solicitor.-Broomhead v. Eyre, 5 T. R. 597. When part of the consideration is the giving up a former annuity, it cannot be stated as money. Wasburn v. Birch, 5 T. R. 472. Neither can money previously lent upon promissory notes which were given up.-Kirkman v. Price, 1 H. B. 309. No money retained by the grantee with the consent of the grantor, for a debt due to the former by the attorney of both parties, and accounted for by a receipt from the grantor to the grantee, and a promissory note from the attorney to the grantor.-Watts v. Millard, 5 T. R. 598. Ruled that a memorial of payment to A. B. and C. some or one of thein, is void. - Vaux v. Ansell, 1 B. & P. 224. The necessity of stating to whom the payment was made is in this case taken for granted. The deed must express by whom the consideration was paid, but not the memorial; per Eyre, Ch. J. ex parte Ansell, 1 B. & P. 63. The contrary is laid down by Lord Loughborough, in Williams and the Duke of Bolton, 2 Vesey, jun. 152. See Crauford v. Philips, post III. It is sufficient if the consideration is stated by way of recital.-Sowerby v. Harris, 4 T. R. 494. -Hodges v. Money, 4 T. R. 500. The consideration need only be stated once in the memorial, although mentioned in all the deeds.-Hodges v. Money, 4 T. R. 500. It is not necessary to state the nominal consideration of ten shillings.-Ince v. Everard, 6 T. R. 545. It is in respect of its forming a part of the consideration that an agreement for the redemption of the annuity must be stated.-Steadman v. Purchase, 6 T. R. 737. Rule for setting aside annuity, on account of an agreement for redemption indorsed, discharged -it not appearing to have been made prior to the execution of the deed.-Schuman v. Weatherhead, 1 East. 537 *. Where upon redemption of an annuity it was agreed, that if the grantor should afterwards wish See Saunders v. Hardinge, 5 T. R. 9. in which a memorial stated a deed poll assigning an annuity of 21. and containing a further grant of an annuity of 71. the consideration of which was duly stated; and also a bond for the payment of an annuity of 311. and a warrant of attorney to secure it, and judgment on the warrant of attorney was set aside for not stating the consider ation of the bond---it not sufficiently appearing to be for securing the same annuity as the deed poll. c. 26. to borrow money upon the same terms, the same deeds should be given as a security; and upon an advance of money, the deeds were given accordingly, without fresh inrolment: the court directed them to be cancelled.- Hammond v. Foster, 5 T. R. 635. If a correct memorial be incorrectly inrolled, and the officers afterwards rectify the same before any proceeding had, the court finding the inrolment right will not inquire further.-Gatrick v. Williams, 3 Taunt. 540. III. The third Section requires the Deeds to set forth the Cnsideration; and by whom paid, that the Consideration shall be in Money only. For the manner of stating the consideration see the preceding cases respecting the memorial. If the consideration is paid by an agent of the grantee, it must be so stated-Dalmer v. Barnard, 7 T. R. 248. So by a banker's clerk-Askew v Macreth, 1 N. R. 214. Dom: Proc. It is sufficient if the fact appears by the receipt indorsed on the deed-Philips v. Crauford, 9 Ves. 214. 13 Ves. 517. It is not necessary to state the name of the agent who receives the money-Crauford v. Philips, 2 N. R. 141. Nor the time when the payment was madeCoare v. Giblett, 4 East. 85-Philips v. Crauford, 9 Ves. 214. 13 Ves. 475. But in these cases the day of payment to the grantor's agent was in fact stated. "If indeed any matter had been agreed upon by which payment of the consideration was to be delayed to the disadvantage of the grantor, I should not have thought the consideration fully and truly stated"-per Chambre, J. in Crauford v. Philips. If there be a bond and warrant of attorney it is sufficient to state the consideration in the bond -Hodges v. Money, 4 T. R. As to the SUFFICIENCY of CONSIDERATION.-Notwithstanding the enactment that the consideration shall be as money only, it is not necessary that it shall be paid in monies numbered. Money paid for the redemption of a former annuity is a sufficient consideration---ex parte Fal· lon and Wife, 5 T. R. 253. So an antecedent debt---Kelf v. Ambrose, 7 T. R. 551 †. + Per Lord Kenyon; The great mischief intended to be provided against by the legislature in this Act, was the fraud and circumvention of those who took advantage of the necessities of distressed persons, desirous of taking up money upon annuities, by putting off goods upon the latter, at their own price, instead of money, which goods they were afterwards to dispose of at a consider No. I. c. 26. III. And be it further enacted by the authority aforesaid, That in every deed instrument or other assurance, whereby any annuity or rent-charge 17 Geo. III. shall from and after the passing of this Act be granted or attempted to be granted, the consideration really and bona fide (which shall be in money only), and also the name or names of the person or persons by whom and on whose behalf the said consideration or any part thereof shall be adDeeds shall vanced shall be fully and truly set forth and described in words at length; contain the Consideration and Names at length. All future As to the manner of stating such consideration, having a subsequent execution-Saunders r. vi. ibid. "Hardinge, 5 T. R. 9. IV. The Exception as to Annuities secured on Lands of equal or greater annual Value in Fee or Tail in Possession, or by Transfer of Stock. This exception extends to grants made by persons having a joint power of appointment over the fee, executing such a power by granting an annuity in execution of such power.-Halsey v. Hales, 7 T. R. 194. To an annuity secured on lands in fee of equal value, and also on leasehold premises-er parte Mitchell, 2 East, 137. To an annuity secured on an equity of redemption, the annual value being more than the interest-Amhurst v. Skynner, 12 East, 263Tucker v. Thurstan, 17 Vesey, 131. Upon a summary application, the Court will not try the value of the land upon affidavit, but direct an issue-Saunders v. Wright, 1 Taunt. 369. The exemption as to stock relates only to stock actually transferred, and not an authority by a person entitled to dividends for life, for trustees to apply them in payment of an annuity-Hud. son v. Skinner, 6 T. R. 596—Duff v. Atkinson, 8 Vesey, 577. V. Of the Invalidity arising from a Non-compliance with the Act. In Crossley v. Arkwright, 2 T. R. 603. it was ruled, that an annuity affected by the Act was absolutely void; and that upon an execution against a person to whom goods had been assigned in consideration of such an annuity, the Sheriff might return nulla bona. One point of the decision was, that the grantor of the annuity having subsequently to the plaintiff's execution taken the same goods in execution, had neglected to vacate the annuity, supposing it only voidable by the parties. The invalidity of the particular annuity was taken for granted; but there may be considerable room for doubting upon subsequent determinations, whether it was really a case within the Act. An execution for an annuity void under the Act set aside upon the application of a creditor, able loss. For this reason the legislature required, that the consideration should be in money and not in goods. But it is not necessary, nor was it ever intended that the money should be actually told down at the time of the grant. If it be a bona fide transaction, and the money be really paid to the grantor, or to his use, it satisfies the words and meaning of the Act. An annuity void under the Act is not a forfeiture of a life interest, granted upon condition not to charge or incumber it.-Denn. dem. Dolman v. Dolman, 5 T. R. 641. VI. Proceedings to set aside Annuities. The power, in Section 4, of applying to the Court for the deeds to be cancelled, is confined to the premises subject to the annuity, although the the grantor, and does not extend to an assignee of deed may be void-Garrood v. Sanders, 6 T. R. 403. The power is confined to cases where an action is brought. It does not apply to defects by reason whereof the annuity is void under the first section-Symonds and Ux v. Cobourne, 1 B. & P. 482. The Courts under their general jurisdiction will take cognizance of a warrant of attorney to confess judgment for an annuity void under the Act, and direct it to be cancelled er parte Chester, 1 T. R. 694. and see note 1 B. & P. 66; but will not set aside the other deeds, ex parte Ches. ter, ibid. But the levying a fine does not give jurisdiction to the Court of Common Pleas-Crauford . Caines, 2 H. B. 438. The clause only relates to such judgments on warrants of attorney as were intended to be part of the security, and does not extend to cases where judgment is obtained in the ordinary course of law on any instrument given for securing the same-Buck v. Tyte, 7 T. R. 495. Therefore after verdict and judgment on non est factum the application for summary relief is too late―ibid. After judgment upon warrant of attorney, elegit and verdict in ejectment on application is too late, the defendant should have made his stand upon the ejectment.-Witley v. Woolley, 7 T. R. 540. A rule for setting aside the annuity having been discharged on the merits a new application will not be entertained upon the same statement of facts, although upon a different objectionGreathead v. Bromley, 7 T. R. 455. Nor upon another fact not proved on the former application-Schu.nann v. Weatherhead, 1' East, 537. Annuity not set aside for a clerical error in the term assigned-Ince v. Everard, 6 T. R. 545. So where the true consideration was stated to be and in case the same shall not be fully and truly set forth and described, every such deed instrument or other assurance shall be null and void to all intents and purposes. No. I. 17 Geo. III. c. 26. IV. And be it further enacted, That if any part of the consideration shall be returned to the person advancing the same (1.); or, in case the consideration or any part of it is paid in notes, if any of the notes with the If Part of Conprivity and consent of the person advancing the same shall not be paid sideration be when due, or shall be cancelled or destroyed without being first paid; or if returned or any 2801. and afterwards by mistake which sum of 250l. was paid, &c.—ibid. The Court will not after the death of the grantee set aside an annuity upon a statement of facts which he might have contradicted if livingHaynes v. Hare, 1 H. B. 659; and see ex parte Maxwell, 2 East. 85. So after the death or imbecility of the agent who negociated the transac tion, and could alone speak to the facts, the annuity being paid during his life-Poole v. Cabanes, 8 T. R. 328. Secus where the defects appeared on the face of the instruments, as where only some of the deeds were attested by the witnesses mentioned in the memorial-Ex parte Mac Reth, 2 East. 563. So upon a warrant of attorney when all the deeds are not stated in the memorial-Van Braam v. Isaacs, 1 B. & P. 451. And there is no limitation of time for the application, and the Court have no discretion-Van Braam v. Isaacs, ex parte Mac Reth. The objections to the annuity must be stated in the rule nisi.-Reg. Gen. B. R. T. 42 G. 3. 2 East, 569. Where upon the execution of an annuity bond by three out of several obligors, the grantee of the annuity paid the consideration-money to D. S. one of the three, who immediately paid it into a banker's in the names of himself and T. L. the attorney who acted for all parties, and took the banker's receipt for the money in the names of himself and T. L. which was done in consequence of the other obligors not attending to execute the bond, it being agreed by the parties then present that until the securities should be executed the money should remain in the hands of a banker, and afterwards, upon the execution of the securities, the money was paid at the banker's with the authority of T. L. to D. S., and upon debt brought by the executors of the grantee on the annuity bond, the condition of which, on oyer, stated that the grantee paid the money to the obligors, and the memorial stated that the money was paid to D. S. to the use of himself and the other obligors by the grantee: Held, that a plea alleging that in the assurances the consideration-money was stated to be paid by the grantee, and that it was not stated in the assurances that the sum was advanced by any agent or agents of the grantee, and that the same was advanced on behalf of the grantee by T. L. and D. S. was to be taken as pleaded with reference to the Annuity-act, 17 Geo. 3. c. 26.; and that it raised an objection which was sustained by the facts, and invalidated the bond-Horwood v. Underhill, 3 M. & S. 82. Notes shall not be paid when due, &c. 2. In Equity. A Court of Equity will entertain jurisdiction to set aside an annuity for legal objections founded on the Act-Byne v. Vivian, 5 Vesey, 604Byne v. Potter, 5 Vesey, 609. before the Lord Chancellor-Bromley v. Holland, 5 Vesey, 610 -7 Vesey, 3-Coop. 9. In this last case the principle of jurisdiction was much doubted, and the decision referred to the authority of preceding cases-Underhill v. Horwood, 10 Vesey, 209-Ware v. Horwood, S. C. by Revivor 14 Ves. 28. In that case the Lord Chancellor thought the principle correct. The jurisdiction was exercised in Bromley v. Holland after two unsuccessful applications to the summary jurisdiction of a court of law. The application was on a different ground, and the Master of the Rolls said, "The plaintiff shall not now avail himself of any objection that was the ground of the application to the King's Bench."-(Sed. Qu.) He also expressed an opinion, which is evidently correct, that the refusal of a summary application to set aside the annuity would not be any objection to the same ground being taken again whenever it was endeavoured to enforce it. VII. The Consequences of Invalidating an Annuity. The terms of setting aside an annuity in equity are the taking an account of the consideration paid for the purchase with interest at five per cent., deducting the payments from time to time made, which are to be applied in the first place in discharge of the interest and then of the principal, and in case any thing upon taking such account is due from the grantor he is to pay it to the grantee or his Assignee-Bromley v. Holland, 7 Ves. 29. And this is the course adopted in setting aside annuities upon summary applications to courts of law. Premiums of insurance on the life not allowed ex parte Shaw, 5 Vesey, 620. Allowed under special circumstances, the Bill offering to pay any fair and reasonable demands, and the insurance having been proposed by the grantor in a letter as a reasonable term-Hoffman v. Cooke, 5 Ves. 623. If the balance of account is against the grantor it cannot be recovered-Bromley v. Holland, 7 Ves. 29. An annuity being vacated for non-conformity with the Act, the purchase-money may be recocovered back in an action for money had and received-Shove v. Webb, 1 T. R. 732. No. I. 17 Geo. III. c. 26. the consideration or any part of it is paid in goods; or if any part of the consideration is retained (2.) on pretence of answering the future payments of the annuity or any other pretence; in all and every of the aforesaid cases it shall and may be lawful for the person by whom the annuity or rent-charge is made payable to apply to the court in which any action is brought for payment of the annuity on judgment entered, by motion, to stay proceedings on the judgment or action; and if it shall be cancelled,&c. appear to the court that such practices as aforesaid or any of them have the Court may order Deed to Qu. As to this form of action when part of the consideration is an antecedent debt for goods sold -ibid. A mere surety for the annuity is not liable to this action, although he has signed a receipt for the money-Straton v. Rastall, 2 T. R. 366. The action may be maintained if the grantor has procured the Warrant of Attorney to be set aside on motion, though the other securities remain, Scurfield v. Gowland, 6 East, 241; or if even the grantor has dissented from the annuity and refused to pay it on the ground of its invalidity -Waters v. Mansell, 3 Taunt. 56. The payments may be set-off-Hicks v. Hicks, 3 East, 16; although made above six years before, the Statute of Limitations not being replied-ibid. Qu. If it is replied. Qu. As to allowing a computation of interest, interest not being usually allowed in actions for money had and received. Lord Eldon in Jones v. Harris, 9 Ves. 492, says, that the general opinion at the time when the Act was passed was, that if a proper memorial was not registered the grantee should neither have his annuity or the money back, the Act meaning to put an end to such transactions. That would have been a much wiser course than that which has prevailed in later cases, for it is a mockery to say that a man shall be relieved upon such terms. In general, persons who are under the necessity of raising money in this way would not dare to take the objection under the Act, when the consequence would be an immediate execution. The effect therefore of these decisions that the consideration may be recovered back with interest is instead of the protection intended by the Act to increase the evil. He proceeds to add, that the contrary is settled by authority. Previous to these observations being promulgated from the Bench, the liability to refund had been the subject of opposite opinions in Mr. Powell's Essay on the Law of Contracts, and Mr. Plowden's Treatise on Annuities.-The opinions of the former gentleman being in favour of the right of repetition, and the latter in opposition to it. The present Editor, in endeavouring to illustrate the general nature of a right of repetition, in an Essay submitted to the public, on the action for money had and received, took the opportunity of expressing his own ideas upon the subject, and, in conformity with those principles of jurisprudence which he has often endeavoured, however unsuccessfully, to promote, took occasion to observe, in answer to the arguments of Mr. Plowden, that a great part of his reasoning will be answered, by admitting, that a man who has neg lected to take the measures prescribed by law for securing his annuity, or to speak more correctly, who has fallen into some mistake in endeavouring to comply with the requisites of the law, shall not be allowed, in the first instance, to adduce his own neglect or mistake as a ground of prejudice against the opposite party; he shall not allege, that in consequence of a blunder in the registry he will no longer receive his annuity, but reclaim his principal, any more than a person who has made a fraudulent insurance, shall come in the first instance, and shewing, that by his own fraud the policy was void, insist upon the premium being retained; but when the other party has taken advantage of the invalidity of the contract, has found out some formal technical objection, and refused, in consequence, to adhere to his engagement, can it be contended that he has any right, in point of natural justice, to retain the money that he received for a purpose which he refuses to execute? By the protection of the law he shall not be placed in a situation which he considers less advantageous than if his engagements had not been made; but shall he be therefore enabled to put himself in a better situation, than if there had been no engagement at all, by the amount of the money which he wishes to retain? He shall not be injured; but shall he, therefore, be allowed to defraud? And as to any supposed agreement of not reclaiming the principle is an essential part of the supposition, that the annuity will be duly paid; it is blowing hot and cold to adopt one part of the supposition and reject the other. If the grantee of the annuity does not properly provide for its security, let the grantor avail himself of positive law and avoid it; but let him not, at the same time, retain the purchase-money and with hold the security; more especially, let not the the conduct of the man who requires to be paid either the one or the other, who only certat de damno vitando against the other, qui certat de lucro captando be the object of reproach." Reviewing these observations, after an interval of thirteen years, he is happy in retaining his preference to the principles which have been established by the authority of judicial decisions, over the incidental observations by which they have been assailed; feeling that if the object of the legislature was to abolish the contract under consideration, it would have been more consistent to have given that intention its full and proper effect, by at once attaching illegality to the substance of the contract, and precluding the repetition of money paid as the consideration of it, than under the pretext of regulation and publicity to have entangled it in a set of obscure and unintelligible formalities, de been used, it shall and may be lawful for the court to order the deed bond instrument or other assurance to be cancelled, and the judgment if any has been entered, to be vacated. No. I. 17 Geo. III. c. 26. V. And be it further enacted, That a particular roll shall be provided and kept by the clerks of the inrollments in Chancery or their deputy, on which such memorials shall be entered, and that every such memo- Directions rerial shall be duly inrolled in order of time as the same shall be brought lating to into the office; and the said clerks of the inrollments or their deputy shall rollment of specify upon the roll the certain day hour and time on which such me- Memorials. morial is brought to the office, and shall grant a certificate of the inrollment thereof when required; and that there shall be paid for the inrollment of every such memorial the sum of one shilling and no more in Clerks' Fees. case the same do not exceed two hundred words; but if such memorial shall exceed two hundred words, then after the rate and proportion of sixpence for every hundred words and the like fees for every certificate and copy given; and the fee of one shilling for every search in the office and no more. void. VI. And be it further enacted by the authority aforesaid, That all con- All Contracts tracts for the purchase of any annuity with any person being under the for Purchase of age of twenty-one years shall be and remain utterly void, any attempt to Annuities with confirm the same after such person shall have attained the age of twenty- any person under 21 Years, one years notwithstanding: And that if any person shall either in person by letter agent or otherwise howsoever procure engage solicit or ask any person being under the age of twenty-one years to grant or attempt to grant Any Person any annuity or rent-charge, or to execute any bond deed or other who shall proinstrument for securing the same; or shall advance or procure or treat cure or solicit for any money to be advanced to any person under the age of twenty-one any Minor to years upon consideration of any annuity or rent-charge to be secured or grant an Angranted by such infant after he or she shall have attained his or her nuity, &c. age of twenty-one years; or shall induce solicit or procure any infant upon any treaty or transaction for money advanced or to be advanced to make oath or to give his or her word of honour or solemn promise that he or she will not plead infancy or make any other defence against the demand of any such annuity or rent-charge or the repayment of the money advanced to him or her when under age; or that when he or she comes of age he or she will confirm or ratify or in any way substantiate such annuity or rent-charge; every such person shall be guilty of a misde- shall be punishmeanor and being thereof lawfully convicted in any court of assize oyer and ed, &c. terminer or general gaol delivery shall and may be punished for the said offence by fine imprisonment or other corporal punishment as the court shall think fit to award. luding the one party by subjecting him to the loss of the advantage for which he had stipulated, and of the money which he had advanced, and supporting the other in his iniquitous retention of the price of an engagement which he had not the honesty to perform. VIII. Of Assignments of Annuities. In the case of the Duke of Bolton v. Williams, 2 Ves. jun. 138, (among many other points,) it was held by Lord Loughborough, than an assignment of an annuity is required to be registered as well as an original grant, but this as a general question was not necessary to be decided, as the transaction related to the grant of an original annuity including the transfer of former annuities, and invalid on other grounds; and in Dixon v. Birch, 2 Hen. Bl. 307-Bromley v. Greathead, Hunt on Annuities, 188-it was ruled and is now settled, that an assignment of an annuity is not within the Act. (1.) A, an attorney, purchases an annuity of B, and having paid the consideration-money, receives from B, the amount of a bill for business done, including by mistake, a charge for searches for incumbrances, which searches had never been made: Held, that the payment of this charge, so inadvertently made, was not a return of the consideration-money within the meaning of 17 Geo. 3. c. 26. s. 4. Hurd v. Girdlestone. 1 Marsh 407. S. C. 6 Taunt. 8. (2.) The grantor of an annuity was required for further security, to make her will and deposit it with the grantee, and to make an affidavit that she would not revoke it; a magistrate refused to let her swear the affidavit, but the grantee retained the will.-10. which had been retained till the grantee should make the affidavit, were then paid to the grantee. The memorial did not notice the will. Held, that the memorial was therefore bad, but that the 101. was not money retained within § 4, of the stat. 17 Geo. 3. c. 26. Ex parte Mackenzie, 4 Taunt. 346. |