Sect. 5. Former enactments. Effect of sect. 2 of 9 Geo. II. c. 36. Early mis was made in good faith and for full and valuable consideration (h), and was made to take effect in possession immediately from the making thereof without any power of revocation, reservation, condition, or provision, except such as is authorized by this Act (i), and if at the time of the application possession or enjoyment was held under the assurance, then enrolment in pursuance of this section shall have the same effect as if it had been made within the requisite time (d): (3.) (j) Provided that if at the time of the application any proceeding for setting aside the assurance (c), or for asserting any right founded on the invalidity of the assurance, is pending, or any decree or judgment founded on such invalidity has been then obtained, the enrolment under this section shall not give any validity to the assurance. (4.) (k) Where the instrument omitted to be enrolled in proper time (d) has been destroyed or lost by time or accident and the trusts thereof sufficiently appear by a copy or abstract thereof or some subsequent instrument, such copy, abstract, or subsequent instrument may be enrolled under this section in like manner and with the like effect as if it were the instrument so destroyed or lost. (5.) (1) An application under this section may be made by any trustee, governor, director, or manager of, or other person entitled to act in the management of or otherwise interested in, any charity or charitable trust intended to be benefited by the uses declared by the instrument to be enrolled. (a) This section consolidates and re-enacts the provisions of 24 & 25 Vict. c. 9, s. 5; 27 & 28 Vict. c. 13, s. 3; 29 & 30 Vict. c. 57, ss. 1, 2, 3 and 4; and 35 & 36 Vict. c. 24, s. 13, all of which are repealed by sect. 13 of the present Act. It has been stated (ante, p. 394) that sect. 2 of 9 Geo. II. c. 36 relieved assurances for full and valuable consideration from the risk of being rendered invalid by the death of the assuror within the prescribed period after the date of the assurance. The meaning of that section was the subject of considerable misapprehension, apprehensions it being commonly supposed that it was intended to exempt assurances of the Sect. 5 (a) kind therein mentioned from the operation of the Act altogether, so as to render it unnecessary for them to comply with the requirements of sect. 1. The consequence was that many assurances to charitable uses for full and valuable consideration were executed without the formalities required by operation. sect. 1, with the result that they were rendered void by sect. 3. as to its To obviate this result, so far as non-enrolment was concerned, a series of Acts enlargActs was passed by which the time within which assurances for valuable ing time for consideration might be enrolled was from time to time extended. enrolment. The first of these Acts was 9 Geo. IV. c. 85. That Act provided that Geo. IV. where lands or any estate or interest therein had been purchased for any c. 85. charitable uses for full and valuable consideration actually paid, every assurance of such lands (if made to take effect in possession for the charitable use intended immediately from the making thereof, and without any power of revocation, reservation, trust, condition, limitation, clause, or agreement whatsoever, for the benefit of the grantor or any person or persons claiming under him) should be as valid as if the formalities of sect. 1 of 9 Geo. II. c. 36 had been duly observed. But the Act was not to extend to validate assurances made after its passing. The effect of this Act was considered in Doe v. Hawkins, 1 G. & D. 551. The next Act was 24 & 25 Vict. c. 9, which by sect. 3 provided that no 24 & 25 Vict. assurance for charitable uses of any hereditaments for full and valuable c. 9. consideration actually paid should be avoided by 9 Geo. II. c. 36, if such assurance was made to take effect in possession for the charitable use intended immediately from the making thereof, and was without any power of revocation, and had been enrolled at any time before the passing of that Act or within twelve months afterwards. By 25 & 26 Vict. c. 17, s. 1, and 27 & 28 Vict. c. 13, s. 1, the time within 25 & 26 Vict. which the enrolment might be made was further extended by the last Act c. 17. to the 17th of May, 1866. And sect. 4 of 24 & 25 Vict. c. 9, amended by sect. 4 of 25 & 26 Vict. c. 17, and sect. 2 of 27 & 28 Vict. c. 13, made similar provision for cases where the charitable uses were declared by a separate deed. 27 & 28 Vict. c. 13. The next Act was 29 & 30 Vict. c. 57, which empowered the Court of 29 & 30 Vict. Chancery, upon the application by summons of any trustee, governor, c. 57. director, or manager of a charity, or any other person entitled to act in the management of, or otherwise interested in, a charitable trust (sect. 1), if satisfied that an assurance conveying or charging hereditaments for charitable uses was made bonâ fide for full and valuable consideration, and that at the time of application possession or enjoyment was held under such assurance, and that the omission to enrol had arisen from mere ignorance or inadvertence, or the destruction of the deed by time or accident, to make an order authorising the enrolment of the assurance, or (where it had been lost by time or accident, and the trusts thereof sufficiently appeared by some subsequent deed appointing new trustees or otherwise reciting the trusts created by the original assurance) such subsequent deed, within six months from the date of the order. And it was provided that no acknowledgment prior to enrolment should be necessary (sect. 2). Six years later, by sect. 13 of the Charitable Trustees Incorporation Act, Charit. 1872 (post, Part III. of this Book), a power to enrol assurances, co-extensive Trustees Incorporation with that of authorizing enrolments conferred by the last-mentioned Act upon Act, 1872. the Court of Chancery, was given to the Clerk of Enrolments in Chancery. Sect. 5 (a)—(g) Repeal. Enlargement of time for enrolment in special cases. All the above-mentioned Acts, 9 Geo. IV. c. 85, 24 & 25 Vict. c. 9, 25 & 26 Vict. c. 17, 27 & 28 Vict. c. 13, and 29 & 30 Vict. c. 57, are repealed by sect. 13 of the present Act, post. Sect. 13 of the Charitable Trustees Incorporation Act, 1872, is also repealed by the same section. Besides the Acts above mentioned, various other Acts have from time to time been passed, by which in particular cases an enlarged time has been allowed for enrolling assurances to charitable uses. By 4 & 5 Vict. c. 38, s. 16 (repealed by the Stat. Law Rev. Act (No. 2), 1874), assurances for valuable consideration upon trust for the purposes of the education of the poor, and not enrolled, were rendered valid if enrolled within twelve months after the passing of the Act. By the Poor Law Amendment Act, 1844 (7 & 8 Vict. c. 101), s. 73, it is provided that where assurances, whether gratuitous or for valuable consideration, of lands, &c., have been made to or in trust for the churchwardens and overseers of the poor, or the overseers only, or the guardians of a parish, or otherwise for the benefit of a parish, or to or in trust for the guardians of a union for the purpose of providing a workhouse or asylum for the poor of the parish or union, such assurances are to be deemed valid, although not enrolled pursuant to 9 Geo. II. c. 36. The last-mentioned section cures no defect except want of enrolment: Webster v. Southey, 36 Ch. D. 9. In the case of Roman Catholic charities, it was enacted by the Roman Catholic Charities Act, 1860 (post, Part III. of this Book), that deeds relating to such charities should not be void if enrolled within twelve months after the passing of the Act. (b) This sub-section is substituted for part of the provisions of sect. 2 of 29 & 30 Vict. c. 57, and sect. 13 of the Charitable Trustees Incorporation Act, 1872, the provisions of which are stated in n. («), supra. The remainder of such provisions, and of sect. 3 of 29 & 30 Vict. c. 57, are reproduced with slight variations by sub-sect. 2 of the present section. (c) Defined by sect. 10, post, p. 439. (d) See sub-sect. (9) of sect. 4 of the present Act, ante, p. 387. (e) The officer having control over the enrolment of deeds is now the Clerk Enrolment, Enrolment formerly took place in Chancery. By the Jud. (Officers) Act, 1879 (42 & 43 Vict. c. 78), s. 5, the Enrolment Office was amalgamated with the Central Office of the Supreme Court of Judicature, and the office of Clerk of Enrolments is one of the offices which, under sect. 14 of the same Act, will be abolished on the next vacancy. In the meanwhile, under sect. 7, the existing Clerk of Enrolments retains his control and superintendence over the business hitherto performed in his office. Upon a vacancy arising the office will, under sect. 27 of the last-mentioned Act, be filled up by such officer as may be substituted by rules of Court. It is provided by R. S. C. 1883, Ord. LXI. r. 9, that deeds which by any statute or statutory rule are directed or permitted to be enrolled in any of the Courts whose jurisdiction has been transferred to the High Court of Justice, may be enrolled in the Enrolment Department of the Central Office. (ƒ) Under 29 & 30 Vict. c. 57, s. 1 (see ante, p. 421), the application to the Court for enrolment was by summons without service upon any person. (g) See n. (b), supra. (h) As to what is full and valuable consideration, see ante, pp. 394, 395, and sect. 13, post. (i) See sub-sects. (2), (3), and (4) of sect. 4 of the present Act, ante, and notes thereto. p. 386, (j) This sub-section re-enacts, without substantial variation, sect. 4 of 29 & 30 Vict. c. 57, and it also takes the place of the earlier enactment to the similar effect in 24 & 25 Vict. c. 9, s. 5. (k) This sub-section is taken from sect. 3 of 27 & 28 Vict. c. 13. Under the old provision the subsequent deed enrolled must have been " some subsequent deed appointing new trustees, or otherwise reciting the trusts created by the original deed." The provision that a copy or abstract of the original deed may be enrolled is new, and was not in the bill when first introduced. (1) This sub-section reproduces sect. 3 of 27 & 28 Vict. c. 13, and sect. 1 of 29 & 30 Vict. c. 57. Sect. 5 (4)-(4) PART III.-EXEMPTIONS. not Assurances any park, ele for a public mentary museum (a). 6.-(1.) Parts One and Two of this Act shall apply to an assurance (b) by deed of land (b) of quantity or to an assurance by will of land of the quantity school, or hereinafter mentioned for the purposes only of a public public park, a schoolhouse for an elementary school (c), a public museum, or an assurance by will of personal estate to be applied in or towards the purchase of land for all or any of the same purposes only: (2.) Provided that a will containing such an assurance, and a deed containing such an assurance and made otherwise than in good faith for full and valuable consideration (d), must be executed not less than twelve months before the death of the assuror, or be a reproduction in substance of a devise made in a previous will in force at the time of such reproduction, and which was executed not less than twelve months before the death of the assuror, and must be enrolled in the books of the Charity Commissioners within six months after the death of the testator, or in case of a deed the execution of the deed. (3.) The quantity of land which may be assured by will under this section shall be any quantity not exceeding twenty acres for any one public park, and not exceeding Sect. 6. Former enactments. Construction of Act. two acres for any one public museum, and not exceeding one acre for any one schoolhouse. (4.) In this section: (i.) "public park " includes any park, garden, or other land dedicated or to be dedicated to the recreation of the public; (ii.) "elementary school" means a school or department of a school at which elementary education is the principal part of the education there given, and does not include any school or department of a school at which the ordinary payments in respect of the instruction from each scholar exceed ninepence a week; (iii.) "school house" includes the teacher's dwellinghouse, the playground (if any), and the offices and premises belonging to or required for a school; (iv.) "public museum" includes buildings used or to be used for the preservation of a collection of paintings or other works of art, or of objects of natural history, or of mechanical or philosophical inventions, instruments, models or designs, and dedicated or to be dedicated to the recreation of the public, together with any libraries, reading rooms, laboratories, and other offices and premises used or to be used in connexion therewith. (a) This section re-enacts 34 & 35 Vict. c. 13, which is repealed by sect. 13 of the present Act, post. Sub-sects. 1 and 2 of the present section take the place of sects. 4 and 5 of 34 & 35 Vict. c. 13; sub-sect. 3 reproduces sect. 6; and sub-sect. 4 re-enacts sect. 3 of that Act. The only material alteration introduced by the present enactment is in sub-sect. 2. The words in that sub-section "or be a reproduction in substance of a devise made in a previous will in force at the time of such reproduction, and which was executed not less than twelve months before the death of the assuror," are new. The sub-section also clears up a little difficulty which had been felt under sect. 5 of the old Act as to the time for enrolment. Provisions like that contained in the present section are construed widely : Harrison v. Corporation of Southampton, 2 Sm. & Giff. 387, decided on 8 & 9 |