the next of kin, disputed the validity of the gift. Mr. Osborne and Mr. Chapman Barber, for the plaintiffs, contended that the trust was not invalidated by the Mortmain Act, They referred to Attorney General v. Williams, 2 Cox, Re Watmough's trusts, 38 Law J. Shelford on Mortmain, p. 118. They submitted that the present gift was a gift to the trustees for the general purposes of the hospital, to be applied according to law. The deed poll was executed only for the purpose of shewing that the trustees had not the beneficial interest in the stock, and was of no validity. Mr. Wickens, for the Attorney-General, submitted that the gift was a good charitable gift. Gifts such as this were of constant occurrence, and were always treated as valid. If the contention of the opposite side were correct not only the personal representative of the donor of such a gift, but the donor himself during his lifetime, could recover back the money, and could do so even after the money had been actually expended. Such a doctrine would make it impossible to collect money for any charitable purpose involving building, and the consequences would be most dis astrous. Mr. Cotton and Mr. Townsend, for M. A. Delancey, contended that the Mortmain Act applied to the present case. Here the Here the donor had died within a few days after the gift. It was not necessary to consider whether or no the donor herself could have recovered the money back again in her lifetime. According to the contention of the plaintiff, a man might on his deathbed give the whole of his fortune in cash or by cheque to trustees, for purposes forbidden by the Mortmain Act. This would be tantamount to a repeal of the statute. They cited Price v. Hathaway, 6 Madd. 312; Attorney General v. Acland, 1 Russ. & M. 243. Mr. Nalder for the remaining next of kin. Mr. Osborne in reply. MALINS, V.C., after stating the facts, continued as follows:-I take it to be perfectly clear, and indeed it has not been disputed (I had occasion in the case of Re Watmough's Trusts (sup.) to review the authorities, and I there laid down the rule), that whenever money is by will given for charitable purposes for the purpose of building, unless land already in mortmain is pointed out, the trust to build, necessarily involving the acquisition of land whereon to build, falls within the Mortmain Act, and is void. If, therefore, this lady had given by will the 5,000l. for the purpose of building a Fever Hospital at Cheltenham, that would have been within the Mortmain Act and absolutely void, and the property would have been held for the next of kin or personal representative. Was there any other purpose? The only other evidence of the purpose was the deed executed by the trustees, in which they again declare that the gift was for the purpose of the erection, after the decease of Miss Delancey, and for the future maintenance and support of a Fever Hospital. I am quite certain she never intended to postpone the erection till after her decease. She intended the erection to take place immediately, and the sooner it was completed the better would she have been pleased. However that may be, it comes to this after all, that it is a case in which a person gives a considerable sum of money (small no doubt with reference to her fortune) only fourteen days before her death. She died on the 7th of April, and fourteen days before that she gave the 5,000l. for the purpose of building a Fever Hospital. Now, this being a gift which I have already said would be clearly void if made by will, the sole question is, whether it is so, being made not by will, but by gift in her lifetime, followed by an investment, without any application of the money, but being a completed gift by the payment of the cheque, and the investment of the proceeds of the cheque in consols in the names of the trustees in her lifetime? Does the Statute of Mortmain apply to such a gift or does it not? If the statute does apply, then I have no other course than to give effect to the statute. I cannot speculate on what the parties ought to do. I should have been very glad if the next of kin had left the money entirely under the direction of the Court, to be expended as the Court thought fit; but Mr. Cotton's client, the fourth defendant and one of the next of kin, desires to have such rights as she is entitled to by law, and if the statute gives her those rights, it will be my duty to decide accordingly. I have already said it is extraordinary that the law should be so; but the policy of the Mortmain Act is that a person may give his fortune for charitable purposes, provided it does not involve the acquisition of land. If it is pure personal estate he may give it all to charitable purposes. For instance, he may give it all to a hospital, but he must not give it for the purpose of buying land. Neither by will nor by deed nor by gift, unless the gift be a certain time before the death, can you give for charitable purposes land, money invested in land, any interest in land, or money to be employed in the acquisition of land. Does, then, this gift which was made a few days before the death of the intestate, fall within the provisions of the statute ? The object of the statute is recited in these words:: "Whereas gifts or alienations of lands, tenements, or hereditaments in mortmain are prohibited or restrained by Magna Charta and divers other wholesome laws, as prejudicial to and against the common utility, nevertheless this public mischief has of late greatly increased by many large and improvident alienations or dispositions by languishing or dying persons, or by other persons, to uses called charitable uses to take place after their death." If it stood there it would be rather bare it would apply only to those gifts which are to take place after death, but though that is the preamble of the statute, it is clear that the enactments go far beyond that. would have been a resulting trust for the donor. How is that trust to be intercepted? By a valid declaration of trust undoubtedly it might have been intercepted, but in order to intercept it, there must be a valid declaration of trust. Can there be a valid declaration of trust for a purpose which is illegal? Clearly not. If, then, this purpose for which the money was given is illegal, then there is a declaration of trust for an illegal purpose, and consequently there is a resulting trust for the benefit of the donor. The trust is not for the general purposes of the hospital which is existing, but the trust is to build a hospital, that is the original statement in the bill carried into effect by a written document; but the only purpose for which the money was given involved the necessity of acquiring land, and therefore by this statute, inasmuch as it was within twelve months before the death of the intestate, the trust is to all intents and purposes null and void. The only question, therefore, is, is the purpose one which could have been carried into effect by will? If not, it cannot inter vivos, unless the gift be twelve months before the death of the donor. The general purposes of the statute cannot be better explained or expressed than they are by Sir John Leach in the case of Price v. Hathaway. [His Honour referred to the judgment in that case, 6 Madd. p. 312.] I am of opinion that this is within the express enactment of the statute as it is within its policy and object, and although in this particular case I should have been most anxious if I could have seen my way to carry the benevolent objects of this lady into effect, and to establish a hospital in the town in which she lived, yet when I see it is impossible for me to do so without an infringement of the law, my [His Honour read the words of the duty is to adhere to the law as I find it, statute.] Now what was the effect of this transaction? If it had been a simple transfer, if the cheque had been given into the hands of the two plaintiffs, with a direction to them to invest the proceeds in the 3 per cent. Consols, it is perfectly clear that the gift being between strangers in blood would have been invalid, and there NEW SERIES, 40.-CHANC. and I am clearly of opinion the gift is invalid. Solicitors-Messrs. Merediths & Roberts, agents for Messrs. Gwinnett & Co., Cheltenham, for plaintiffs; Messrs. Raven & Bradley, for the AttorneyGeneral; Messrs. Townsend, Lee & Co., and Messrs. Fladgate & Co., for other parties interested. E GIFFARD, L.J. 1870. June 10. In re LONDON AND MEDI- Company-Bill of Exchange-Acceptance by Director pending the Winding-up -Companies' Act, 1862, ss. 133, 153. A resolution to wind up a banking company voluntarily was confirmed on the 22nd, and advertised in the London Gazette on the 26th of November. On the 24th of the same month one of the directors, who had been appointed a liquidator, accepted, as director, a bill of exchange on the bank. This bill was afterwards indorsed for value to a person who had no notice that the bank was in liquidation:-Held (affirming the decision of STUART, V.C.), that the bill was not a bill of the company, and therefore that the holder could not prove against the company for the amount. The London and Mediterranean Bank was wound up voluntarily by a resolution passed on the 6th, and confirmed on the 22nd of November, 1865. This resolution was advertised in the London Gazette of the 26th of November. Four liquidators were appointed, one of of whom was a Mr. Maxwell, who was also a director. On the 24th of November the liquidators passed a resolution that the acceptances of the bank should be signed by one of themselves and the manager. On the 25th of November, Mr. Maxwell and the manager accepted a bill of exchange for 1,000l., drawn in the previous October on the bank by a Mr. Gentile. Maxwell signed the bill as director and not as liquidator. An order was subsequently made to continue the winding up under the supervision of the Court. In December, 1865, the bill was endorsed for value to Mr. Bolognesi, who said that he had at that time no notice of the winding up of the bank. He applied, before Stuart, V.C., to prove against the bank for the amount of the bill, but his Honour refused to make any order on the application; Mr. Bolognesi appealed. Mr. Swanston and Mr. Waller, for the appellant, contended that the acceptance of this bill was a transaction which the Court could sanction under the 153rd section of the Companies' Act, 1862. The holder had no notice of the winding up, and ought to be allowed to prove for the amount. They referred to Emmerson's case, 35 Law J. Rep. (N.S.) Chanc. 652; s. c. Law Rep. 1 Chanc. 433; Pearson's case, 37 Law J. Rep. (N.S.) Chanc. 554; s. c. Law Rep. 3 Mr. Hardy and Mr. Napier Higgins, for the liquidators, were not called upon. LORD JUSTICE GIFFARD said, that this was an attempt to prove upon a bill which was not a bill of the company. In his opinion the acceptance of this bill was not a disposition of the property, effects, and things in action of the company" within the meaning of the 153rd section of the Act of 1862, and therefore the Court had no jurisdiction to support it on that ground. The bill was accepted, after the resolution to wind up had been passed, by a person purporting to be still a director of the company, but under the 5th clause of the 133rd section of the Companies' Act, all the powers of the directors had then ceased, as liquidators had been appointed. The bill therefore was not the bill of the company, and the appeal and summons must be dismissed with costs. of which consisted of money secured on mortgage of real estate, in equal fourths, one to each of the four following institutions, viz., the School for the Indigent Blind, the Female Orphan Asylum, the Clapham Orphan School, and the Deaf and Dumb School, in the Old Kent Road. Questions were now raised whether any and which of the said charities were entitled to share in such part of the residue as consisted of mortgage money. By the Act of Parliament incorporating the Indigent Blind School, it was authorised to accept gifts and bequests of money and also to "purchase, take or receive and thenceforth hold and enjoy any lands, tenements or hereditaments, in the whole not exceeding two acres, for any estate or interest whatsover for the purposes of the said charity." A subsequent Act relating to this school (28 & 29 Vict. c. 73. ss. 3, 13) recognised its right to hold lands in mortgage, and provided that in case any mortgage should be foreclosed by or any equity of redemption released to it, the lands should be sold within two years. The Orphan Asylum by its act of incorporation was authorised to "have, hold, receive, enjoy, possess and retain for the ends and purposes of this Act . . . . all such sum and sums of money as have been paid, given, devised or bequeathed, or shall at any time or times hereafter be paid, given, devised or bequeathed by any charitable or well disposed person or persons to and for the charitable ends and purposes in this Act mentioned, . . . and shall, and may, at any time hereafter, without license in mortmain, purchase, take or receive, hold, and enjoy, any lands, tenements or hereditaments, or any estate or interest arising or derived out of any lands, tenements or hereditaments for the purposes of the said charity." Mr. Southgate for the plaintiffs, the executors of the will. Sir R. Baggallay and Mr. Cookson for the Indigent Blind School.-We admit that it has been decided in Robinson v. Governors of London followed by Chester v. Chester, Law Rep. 2 W. N. 78, that a power to take and hold lands did not authorise a testator to devise real estate to a charity, and in the latter case also that a bequest of leaseholds could not be made to our charity, but our Acts of Parliament clearly contemplate our holding mortgages, and give us an express power to accept bequests of money. Some force must be given to this power, but unless it include money secured on real estate, it has no force whatever, and might as well be struck out of the Act, for a bequest of pure personalty may of course be made to us without any express power. We therefore submit that the power was intended to remove the disability created by the statute of mortmain, so far as it relates to moneys secured on land. Mr. Hadley, for the Female Orphan Asylum, supported the same view. He urged that with respect to the British Museum, Middlesex Hospital, and St. George's Hospital, the disability of testors to devise real estate to them had been removed by a mere power in their statutes "to obtain lands by will," and that his charity was authorised to obtain money secured by mortgage, by bequest. Mr. Horsey, for one of the other charities which had power to "obtain, acquire, hold and retain any moneys. . . including moneys secured by mortgage or charged upon lands.' Mr. Bovill, for the fourth charity, did not claim any interest in the mortgage moneys. Mr. Wickens, for the Crown, was not called upon. I THE MASTER OF THE ROLLS. The clauses in the Acts of Parliament which have been referred to are very common, and are inserted in almost every Act incorporating a charity. It would be in effect repealing the statute of mortmain to hold that they take away the disability imposed on testators by that statute. do not, however, in this case decide anything as to the cases in which institutions are authorised to obtain lands by will. In none of the statutes before me is there any express power to obtain by will money secured on mortgage. The only argument has been that if you do not give the words containing the power to receive money generally the meaning sought to be put upon them, you in effect make them useless and mere surplusage. I do not assent to that view. Till the institutions are incorporated they can neither take nor receive anything, and these words which accompany the acts of incorporation tell them what powers they thereby receive. I am therefore of opinion there is not in any of these cases any power to receive by devise any interest in lands. The clauses referred to operate as mere licenses in mortmain. Solicitors-Messrs. Nethersole & Speechly, for plaintiffs; Messrs. Grueber & Cooper, for the school; Messrs. Booth & Lane, Messrs. Raven & Bradley, Messrs. Drew & Wilkinson, and Mr. H. Simpson, for other parties interested. Joint Tenancy-Income-Right of Survivors. A joint tenancy in income is severed as to each instalment as it becomes payable, without actual payment. A fund was settled upon trust to pay the income thereof to a number of infants during their joint lives. During their infancies the income for many years was accumulated. One of them having died, the question was raised whether his personal representative was entitled to a share of the accumulations or whether the whole belonged to the survivors. Mr. Nalder submitted the question, and that the infants were joint tenants of the income, and there had been no severance. Mr. Cates appeared to support the contrary view but was not heard. THE MASTER OF THE ROLLS was clearly of opinion that as soon as any part of the income became payable, the joint tenancy in that part was severed, and consequently that the personal representative of the deceased was entitled to a share of the accumulations. Solicitors-Messrs. Coverdale & Co., for all parties interested. Mortgagor and Mortgagee-AccountsMortgagee in Possession Sale under Power-Part-payment of Principal. If a mortgagee, even when his interest is in arrear, enter into possession and sell part of the mortgaged estate under a power of sale in his mortgage, and after payment of his costs and interest then due, retain a balance of the proceeds in his hands; that balance will be considered as applied in reduction of the principal debt, and future interest can be charged only on the amount of the debt so reduced. Semble-If two distinct mortgages (A and B) by the same mortgagor, each containing a trust to apply the proceeds of a sale under the power, first in payment of costs of sale, then of the interest, and then of the principal due upon it, come into the hands of the same person as mortgagee, he may sell the lands subject to mortgage A, and apply the proceeds in payment of arrears of interest on mortgage B before reducing the principal of A. This was a summons taken out in a suit for foreclosure and adjourned into Court. It raised three questions between the plaintiffs (trustees for the North Eastern Railway Company), as first mortgagees of certain estates of the defendant Hudson and one Elliot a puisne incumbrancer. Two of them were as to the mode of appropriation of moneys received from sale of the mortgaged lands. : The third question was as follows: The plaintiffs were first mortgagees of a freehold estate called the Whitby estate, having a power of sale; the trusts of the purchase money being to pay costs, then the interest, and then the principal due on that security. They were also first mortgagees of a house at Albert Gate, under a similar mortgage. The interest on both mortgages being in arrear, the plaintiffs entered into possession of all the mortgaged property, and from time to time, previous to May, 1861, sold portions of the Whitby estate, and applied the proceeds in reduction of interest on both mortgages, so as to leave in that month |