A later act provides, that where an annuity is secured by several distinct instruments, the omission to memorialise one of them shall not invalidate those which have been duly inrolled.(f) The inrolment of this memorial is essential to the validity of the transaction, and the form is sufficiently simple to create some surprise at the number of reported cases which have actually occurred upon it.

This schedule is, as Sir Edward Sugden has observed, of a very ample kind; and if followed litigation is avoided. "It is impossible," he added, except by great neglect, to commit a mistake in respect of the forms of the act of parliament; but somebody had been neglectful, and in that way the annuity was not worth as an annuity the parchment on which it was written."(g)

3. The thirty days are to be computed exclusively of the day of executing the instrument. (h) When there are witnesses their names must be inrolled, but it is not necessary that there should be witnesses.(i) When the instrument is an annuity policy, or deed-poll in the form usually issued by insurance companies, comparatively few questions can arise; but as the sale and purchase of annuities *by such [*347] companies are not uncommon when the arrangement is carried out by deeds inter partes, it may be worth observing that the date to be mentioned in the memorial is the date that the instrument bears, not the day on which it is executed by all the parties; that it is not necessary that it should have been executed by all the parties before inrolment, although the party delaying the execution may be the grantor. Hence, when any party to such a deed is abroad, it will be proper to inrol the deed before it is sent out of England, and that it should be executed by such party without witnesses.()

The Christian names of the subscribing witnesses must be entered in the memorial; initials are not sufficient, but their descriptions are not required.(7)

4. A statement of the consideration is required, and "how paid." By this is meant the money consideration only. Hence, when the consideration was the conveyance of an estate in land, it was held that no memorial need be inrolled, and the decision was the same where the consideration was a debt when pre-existent ;(m) but when the consideration is a money consideration it must be correctly described, as paid in gold coin, notes of the governor and company of the Bank of England, or any other bank, and where the consideration, actually paid in country bank notes, was described as paid in Bank of England notes, the annuity was set aside;(n) where paid by a draft on a banker, it was considered necessary that the time at which such draft was payable should be stated.().

5. The sixth section provides, that when the consideration is expressed to be paid in money, but the same or any part of it is paid in goods, or

(ƒ) 3 Geo. 4, c. 92, s. 2. Ex parte Swann, 13 Jur. 147. (V. C. B.) (g) Lewis v. Hilman, 3 Clark, House of Lords Case, 623.

(h) Ex parte Fallon, 5 T. R. 283.

(i) Flight v. Buckeridge, 6 B. & C. 49. (1) 3 Geo. 4, c. 92, s. 1.

(k) Flight v. Buckeridge, 6 B. & C. 49.
(m) Doe d. Church v. Pontifex, 9 C. B. 229.
(n) Ex parte Lewis, 2 Ad. & Ell. 135.
(0) Drake v. Rogers, 47 B. Moore, 402.

any part of it is retained on any pretence or returned to the grantee, (p) any person *chargeable may apply to the court in which any [*348] action is brought to set aside the annuity and order every security given for it to be cancelled.

6. In every instrument granting an annuity the name of the cestui que trust (if any) must be inserted as well as in the memorial.(q)

The act also enables any person by whom any annuity is payable to compel the grantee to deliver to him, at his expense, copies of the deeds securing the annuity, and to permit them to be examined by the originals.(r)

7. The act makes contracts for annuities with infants absolutely void and incapable of subsequent confirmation, and prohibits (under penalties) solicitors and other persons from accepting more than ten shillings per cent. brokerage on the purchase-money of the annuity.(s) By the last section it excepts from its operation annuities given by will or marriage settlement, or for the advancement of a child-every annuity upon real estate in Great Britain or Ireland, or the Colonies, of equal or greater annual value than the annuity over and above any other annuity and the interest of any principal sum charged or secured thereon, of which the grantee had notice at the time of the grant, whereof the grantee is seised in fee-simple or in fee-tail in possession, or the fee-simple whereof in possession he is enabled to charge at the time of the grant, or secured by the actual transfer of stock in the public funds of greater annual value than the annuity-voluntary annuities, and annuities granted without regard to pecuniary consideration or money's worth, or by any body corporate, or under any authority or trust created by act of parliament.()

8. It is also provided by the last section that the act shall not extend to Scotland or Ireland. Where some of the parties are resident in England, and the others in Ireland or Scotland, a question may arise, whether the act applies or not. The point was discussed in a case before [*349] *Sir Edward Sugden, Ld. C., in Ireland. An annuity was purchased by an Irishman: the purchase-money was remitted from Ireland, the annuity was charged upon real estate in Ireland, and judgment for securing it was entered up in Ireland. The grantors, however, were resident and had their domicile in England, where the deeds were executed. The Lord Chancellor observed: "It is impossible to deny that the act of parliament contemplated the person who sold, not him who bought, the annuity: its object was to throw protection round the seller; and as all persons resident in England are entitled to the benefit of the Act, and as the seller in this case resided there, I should require great consideration before I could hold that which is prima facie an English security to be an Irish one and excepted out of the Act." He added: "If you execute a deed in England, and are resident there, you cannot say that it is not an English contract." A case was then sent to the Court of Common Pleas, who certified that the contract was an English

(p) Aberdeen v. Jerdan, 15 Q. B. 990.
(9) Sect. 4.
(r) Sect. 5.

(*) Sect. 8.

(t) Sect. 10.

one and within the Act, in accordance with the opinion of the Lord

Chancellor.(u)

9. An agreement to grant an annuity is not within the Act, and does not require inrolment.(v)

10. When the provisions of the Act are infringed, the grantor may apply to a court of equity to direct a reconveyance (if necessary) and the delivery up and cancellation of the securities; the Court will, however, make terms in favour of the grantee, and will require the repayment of the consideration. An account will be taken of the amount paid as such consideration with interest thereon at five per cent. from the time of its advance, and of the sums paid on account of the annuity; the latter will then be applied, as they have fallen due, from time to time in payment in the first place of the interest, and then of the principal, of the consideration. Should the latter have been wholly repaid, the deeds will be ordered to be delivered *up; if not wholly, then upon [*350] the payment by the grantor of the balance. If the balance should appear in favour of the grantee, such payments of the annuity having been made voluntarily, no repayment will be ordered. (2) When the securities are set aside by a court of law under the sixth section, it will require the same terms in favour of the grantee, who will be also entitled to the costs of the conveyance, (x) but not the costs of endeavouring to support or compel payment of the annuity,(y) or any premiums paid for insuring the life, unless the insurance may have been effected with the privity and consent of the grantor (2) When the objection arises upon the second or fourth section the annuity is simply void, and a court of law cannot interfere.

11. The grantee cannot object to the existence of an informality in the inrolment, for it is his duty to make it, and not that of the grantor. (a) But if the grantor has treated the annuity as void, or refused to, make the annual payments, he may bring an action against the grantor for the consideration money, (b) in which case he must allow credit for the amounts he has received, on the same principle upon which the account is taken in equity. Should he have received more than his principal and interest, he will be nonsuited. (c) The Statute of Limitations would begin to run against this demand from the time at which the objection is taken, not from the time at which the annuity is granted.(d) When an action is brought to recover, a discretion is vested by statute in the jury to allow interest upon them; (e) and when a bill is filed for the same purpose, a court of equity will exercise à discretion dependent

*upon the special circumstances of the case in allowing or refusing [351] interest.(ƒ)

(u) Ferguson v. Lomax, 2 Drury & War. 120-238.
(v) Nield v. Smith, 14 Ves. 491.

(w) Bromley v. Holland, 5 Ves. 610, 7 Ves. 3.
(z) Williamson v. Goold, 8 J. B. Moore, 325.
(z) Ibid.; Burdon v. Browning, 1 Taunt. 520;

(y) Ex parte Shaw, 5 Ves. 620. Hoffman v. Cooke, 5 Ves. 623(a) Molton v. Camroux, 4 Exch. 19. (b) Waters v. Mansell, 3 Taunt. 56; Weddell v. Lynam, 1 Esp. 309. (e) Hicks v. Hicks, 3 East, 16.

633.

(d) Cowper v. Godmond, 3 Moo. & Sc. 219. (e) 3 & 4 Will. 4, c. 42, s. 28. ƒ) In re Powell's Trust, 10 Hare, 134; see 3 Mỹ. & Cr. 459.

12. The onus of inrolling the annuity thus lying upon the purchaser, it is the impression of the author that very few annuities granted by insurance companies are ever inrolled. But the question is one which well deserves the attention of the purchaser of annuities. Where a company is of first-rate respectability and of ample capital, no difficulty would be likely to arise in the performance of any obligation of this nature into which it may have entered; the non-inrolment of the annuity would not seem to affect its value more than the want of an insurable interest that of a life policy: but in the event of the dissolution of the company, or even were it in such a position that it became necessary for the governing body to make terms with the various classes of the assured, and, among others, with its annuitants, the latter, or at least such as may not have inrolled their annuities, and from the grant of which a considerable time may have elapsed, might find themselves entirely at the mercy of their insurers, and be compelled to accept almost any terms that the latter might desire to impose upon them.

13. Where a contract has been entered into for the sale and purchase of an annuity, in accordance with the general rule that in equity what is agreed to be done is considered as actually done, specific performance will be decreed; and that although before the execution of the annuitydeed the cestui que vie may have died, and no payment of the annuity may have been made, (g) although if a payment become due before the death of the cestui que vie, the purchaser, to entitle him to insist on a specific performance, must have either made or tendered such payment.(h) The Court will not enforce such a contract at the instance of of the vendor, when there have been laches on *his part: where [*352] he has done nothing to forfeit his right, it will be sufficient if

the contract be a continuing one at the time of the death of the cestui que vie.

"The death," observed Sir Edward Sugden, "can form no objection to the specific performance of the contract. The purchaser agrees to buy an interest of uncertain duration, and he cannot complain that the contingency is unfavourable to him."(i)

Upon the purchase of an annuity, therefore, from an insurance company, the payment of the purchase-money, after the approval of the proposal by the board, would be conclusive, notwithstanding the death of the annuitant an hour after, and before any annuity policy had been executed.(k)

14. But where, at the time of the purchase, the cestui que vie, or person during whose life the annuity was to be paid, was actually dead, both vendor and purchaser being ignorant of the fact, and the grant was executed, and the purchase-money paid, the contract was considered void and the purchaser entitled to recover the purchase-money, in an action for money had and received. It was also considered that an agreement

(9) Jackson v. Lever, 3 B. C. C. 605; see Sugden, Purch. 334. 337. (h) Pope v. Root, 7 B. P. C. 184.

(i) Sugden, Purch. 338. In the event of delay, as to the time from which the annuity is to run, and interest on the purchase-money to be paid, see Purch. 805. (k) Kenney v. Wexham, 6 Madd. 357.

for a future sale became void by the death of the annuitant before that time.(7) It would, of course, be otherwise in the case of an immdiate sale of an annuity, to commence at a future date.

1. INSTRUMENTS in writing evidencing a contract will not in general be complete, unless properly stamped; but when a stamp is required, the effect of the Stamp Laws is not, except in some particular instances, where it is specially provided that the instrument shall not be stamped after execution, to invalidate contracts as such, or to affect the rules of conveyancing, but to prevent unstamped instruments being received in evidence in the courts of law or equity. As, however, to have left it optional to the parties at what time the stamp should be affixed, would have been virtually to have rendered the Stamp Law a dead letter, the stamp can only in most cases be added after execution upon the payment of a penalty.

2. The principal statutes relating to stamps are the late general Stamp Act, 55 Geo. 3, c. 184, operative in Great Britain, and the provisions of which were extended by the 5 & 6 W. 4, c. 64, to the United Kingdom; the new Stamp Act, as it is termed, the 13 & 14 Vict. c. 97; and the still more recent Acts of the last session, namely the 16 & 17 Vict. cc. 59, 63. The 13 & 14 Vict. c. 97, came into operation on the 11th of October, 1850, the two later Acts on the 10th of October, 1853, and applied (with the exception of certain instruments carrying out previous contracts) to all instruments executed after those days; but instruments executed by any party before, or dated on or before those days, are liable to the old duties, although subsequently brought to be stamped. *3. By the 5 W. & M. c. 21, a penalty of 5007., subse[*354] quently reduced by the 6 W. 3, c. 12, to 57., is imposed upon any person executing any deed or instrument subject to duty before the stamp is affixed; but the imposition of this penalty, it is believed, is never enforced by the Commissioners of Stamps ;(a) it is entirely dis

(1) Strickland v. Turner, 7 Exch. 208.

(a) Prior to the 13 & 14 Vict. c. 97, the penalty payable on stamping an executed instrument was 5l., except in the case of agreements under hand only, when it was 10. The provisions now in force on this subject are to be found in the 12th section of that act, and are as follows:

"And whereas, for securing the due payment of the stamp duties imposed by law on deeds and other instruments, it is expedient to alter the terms and conditions on which any such deed or instrument may be stamped after the execution or signing thereof: Be it therefore enacted, that where any deed or instrument liable by law to any stamp duty shall be written on vellum, parchment, or paper, and shall be signed or executed by any person before such vellum, parchment, or paper shall be duly stamped for denoting the payment of the said duty, then and in every such case there shall be due, answered, and paid to her majesty, her heirs