5.3.

gagees from proceeding to judgment and execution in
such actions, but such mortgagors must have recourse to
a court of equity for that purpose; in which case like-
wise the courts of equity do not give relief until the hear-
ing of the cause; and therefore enacts, that where any
action shall be brought in any court of record at West-
minster, [or in the court of great sessions in Wales, or
in any of the superior courts in the counties palatine,]
on any bond for the payment of money secured by mort-
gage, or performance of the covenants therein con-
tained; or where any ejectment shall be brought by any
mortgagee, and no suit shall be depending in equity for
foreclosing or redeeming such mortgaged lands, &c.;
if the person having right to redeem and who shall appear
and become defendant, shall, pending such action, pay
unto such mortgagee, or, in case of refusal, bring into
court the principal and interest due on such mortgage,
and all such costs as have been expended in any suits at
law or equity upon such mortgage, (such principal, inte-
rest, and costs, to be ascertained by the court where such
action is depending, or by the proper officer by such
court to be appointed,) the monies paid to such mortga-
gee, or brought into such court, shall be in satisfaction of
such mortgage; and the court shall discharge such mort-
gagor or defendant from the same, and shall by rule of
court compel such mortgagee, at the costs of such mort-
gagor, to re-convey such mortgaged lands, and deliver
up all writings in his custody relating to the title.
But by s. 3. this act shall not extend to any case
where the persons against whom redemption shall be
prayed, shall, (by writing delivered, before the money
shall be brought into court, to the attorney or solicitor for
the other side) insist, either that the party praying re-
demption has not a right to redeem, or that the premises
are chargeable with other sums than what appear on the
face of the mortgage; nor to any case where the right of
redemption shall be controverted between different de-
fendants; nor be any prejudice to subsequent mortgagees
or incumbrancers. No statute in Ireland has provided

in

in a similar manner for the more easy redemption of mortgages.

The statutes which respect the mode of acknowledging or becoming bound by the securities for money called statute merchant, and statute staple, or the recognizance in the nature of a statute staple, as well as the nature of the executions to be issued thereon, will be found in the chapters which treat of other recognizances and executions. And the statute of Westm. 2. by authority of which the estate by elegit is acquired, seems also to be more properly referable to the chapter concerning executions.

CHAP. VII.

Of Estates in Possession, Remainder, and
Reversion.

time.

10 & 11 W. 3.

c. 16. Eng.

8 Ann. c. 4. Ir *" or to be be

By the 10 & 11 W. 3. c. 16. Eng. where any estate Posthumous shall, by marriage or other settlement, be limited in re- children may take as if born mainder to, or to the use of, the first or other son or sons in father's lifeof the body of any person lawfully begotten,* with remainder over to, or to the use of, any other person; or in remainder to, or to the use of, a daughter or daughters lawfully begotten, with remainder to any other person; any son or daughter of such person, born after the de- c. 4. Ir. cease of the father, may take such estate, in the same manner as if born in the life-time of the father, although no estate be limited to trustees, after the decease of the father, to preserve the contingent remainder to such after

born

gotten" added

here in 8 Ann.

Remedy in cases

of persons 6tended tica ive to the prejudice

of rem underman, &c.

6 Ann. c. 18.

. 1. Eng.

born sons or daughters. The 8 Ann. c. 4. Ir, is the corresponding statute in Ireland.

For the more effectual discovery of the death of persons pretended to be alive, to the prejudice of those who claim estates after their deaths, the 6 Ann. c. 18. s. 1. Eng. provides, that any person who shall have any claim to any remainder, reversion, or expectancy in any estate, after the death of any person within age, married woman, or other person, upon affidavit made in chancery, by the person claiming such estate, of his title, and that he hath cause to believe that such minor, married woman, or other person, is dead, and that the death is concealed, may once a year move the Lord Chancellor to order such guardian, trustee, husband, or other person suspected to conceal such person, to produce to such persons (not exceeding 2) as shall be named in such order by the party prosecuting such order, such minor, &c.; and if such guardian, &c., shall neglect or refuse to produce such infant, &c., on whose life such estate doth depend, according to the directions of this order, the court of chancery shall order such guardian, &c., to produce such minor, &c.,' in court, or before commissioners, as the court shall direct, two of which commissioners shall be nominated by the party prosecuting; and in case such guardian, &c., shall neglect, &c., to produce such infant, &c., in court, or before such commissioners, whereof return shall be made by such commissioners, and filed in the petty bag office, the said minor, &c., so concealed, shall be taken to be dead, and it shall be lawful for any person claiming title after the death of such infant, &c., to enter upon such lands as if such infant, &c., were dead. And by s. 2. if it shall appear to the court by affidavit, that such minor, &c., for whose life such estate is holden, is at some certain place beyond the seas, it shall be lawful for the party prosecuting such order, to send over, at his own costs, the persons appointed by said order to view such: minor, &c.; and in case such guardian, &c.,shall neglect, &c., to produce to such persons a personal view of such infant, &c., such persons shall make a return of such neglect, which shall be filed in the petty bag, and thereupon such minor, &c., shall be

taken

taken to be dead, &c. And by s. 3. if it shall afterwards appear upon proof in any action, that such infant, &c., were alive at the time of such order made, such infant, &c., or other person having any estate determinable upon such life, may re-enter upon said lands, and maintain an action against those who received the profits, or their executors or administrators, and therein recover damages for the profits received. By s. 4. if such guardian, &c., holding or having any estate determinable upon the life of any other person, shall to the satisfaction of the court make appear, that they have used their utmost endeavours to procure such infant, &c., to appear in court or elsewhere, according to the order; and that they cannot procure such infant, &c., to appear, and that such infant, &c., were living at the time of such return made and filed; such person may continue in possession of such estate, as if this act had not been made. And by s. 5. every person who is guardian or trustee for any infant, and every husband seised in right of his wife, and every other person having any estate determinable upon any life, who after the determination of such particular estates, without the express consent of them who are next entitled upon the determination of such particular estates, shall hold over and continue in possession of any lands, shall be adjudged trespassers; and every person, his executors and administrators, who shall be entitled to such lands upon the determination of such particular estates, shall recover in damages against every person so' holding over, and against his executors or administrators, the value of the profits received during such wrongful possession. This statute has remained without adoption in Ireland.

s. 3.

S. 4.

S. 5.

strained so as to

ties,

In analogy to the principle of law which restrains the Limitation of limitations of remainders, and executory devises, within rents, &c. recertain bounds, so as to avoid perpetuities, which the law avoid perpetuiabhors; the 40 Geo. 3. c. 98. Eng. provides, that no 40 Geo. 3. person shall by any deed, surrender, will, codicil, or c. 98. Eng. otherwise, settle or dispose of any real or personal property, in such manner that the rents, issues, profits, or produce thereof, shall be wholly or partially accumulated

for

S. 2.

s. 3.

8.4.

for any longer time than the life or lives of the grantor or grantors, settler or settlers; or the term of 21 years from the death of such grantor, settler, devisor, or testator; or during the minority or minorities of any person or persons who shall be living, or in ventre sa mere at the time of the death of such grantor, &c.; or during the minority or minorities of any person or persons who, under the uses or trusts of the deed, &c., directing such accumulations, would, for the time being, if of full age, be entitled to the rents, issues, and profits, or the interest, dividends, or annual produce so directed to be accumulated; and where any accumulation shall be directed otherwise than as aforesaid, such direction shall be void, and the rents, &c., shall go to, and be received by, such person as would have been entitled thereto if such accumulation had not been directed. But by s. 2. this act shall not extend to any provision for payment of debts of any grantor, &c., or for raising portions for any child of such grantor, &c., or any child of any person taking any interest under any such conveyance, settlement, or devise; or to any direction touching the produce of timber or wood, upon any lands or tenements: Nor by s. 3. shall this act extend to any disposition respecting heretable property in Scotland. By s. 4. the restrictions in this act shall take effect with respect to wills made before the passing of this act (July 28, 1800) in such cases only where the devisor or testator shall be living, and of sound and disposing mind, after the expiration of 12 calendar months from the passing of this act. This statute has not been extended to Ireland,

CHAP.