Incidents of general. It is seldom necessary in practice to have recourse to the remedy afforded by the limitation of a term, Annuities in and if in any case circumstances should occur rendering the creation of a term advisable, a term can then be created under this section. See Wolstenholme, Conv. Acts, p. 97. which a trus ordered to after arrears Where a trustee of a term of years, upon the Terms on usual trusts for securing annuities, has taken posses- tee in possession of the estates under the trusts, although all sion will be arrears of the annuities may afterwards be paid, the deliver up Court will not order possession to be given up to the possession grantor, except upon such terms as will enable the paid. trustees to resume it, and to receive the rents the moment the annuities are again in arrear, without the necessity of bringing an ejectment: and therefore in the interim the grantor, or his agents, to receive the rents and profits in the names of the trustee and the annuitant, or one of them, and the receipts to be given accordingly; and the grantor to be at liberty to use the names of the trustee and annuitant, or either of them, in making or supporting distresses for rent upon the tenants of the estates; the grantor indemnifying the trustee and annuitant, and each of them, from all costs and damages by reason or in consequence of such distress: Jenkins v. Milford, 1 Jac. & Walk. 629. direct a sale of rent 4. By Sale. In addition to the remedies at law Equity will which the owner of a rent-charge has for its recovery, in order to he has in some cases an equitable right to an order raise arrears that the arrears be raised by sale or mortgage. Thus, charge. in Cupit v. Jackson, M'Clel. 495; S. C., 13 Price, 721, Cupit v. Jackwhere, on the marriage of T. B. with E. J., certain son. lands were limited to the use and intent (among other limitations), that T. B. should receive during his life an annuity or yearly rent of 607., and to which were annexed the usual powers of distress and entry. At his death, arrears to the amount of 4507. were due, and his executors filed a bill against the owner in fee of the lands, praying payment of the arrears, and that they might be raised by sale or mortgage. Alexander, C. B., held, that, though the plaintiff had legal remedies for the recovery of the Annuities in Nature and rent-charge, yet this was no bar to the equitable Incidents of relief sought, which was more convenient and effecgeneral. tual; and he was of opinion that the Court had a right to raise the arrears out of the estate, if necessary, by sale or mortgage, the charge being an incumbrance on the estate. So in White v. James, 26 Beav. 191, a sale was decreed to raise arrears of a rent-charge granted with powers of distress and entry, there being nothing to distrain on. But the Court will not make an order for sale or mortgage where the land charged with the annuity is in strict settlement, unless the annuity is expressly charged on the corpus: Taylor v. Taylor, L. R., 17 Eq. 324. See also Pearson v. Helliwell, L. R., 18 Eq. 411. If the annuity is given by will, as in the two last-named cases, the question is whether the gift is to be construed as a gift of an annuity or as a gift of income, or part of the income. Per Lord Selborne in Carmichael v. Gee, 5 App. Cas. 588, 593. See the cases there collected, and infra, tit. WILLS. PROOF IN BANKRUPTCY. Stat. 32 & 33 Vict. c. 71. Proof of debts provable in bankruptcy. Proof in Bankruptcy.]-The Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), does not contain any express provisions with regard to proof for annuities (k). It (k) The following provisions, material to the present purpose, are contained in the Bankruptcy Act, 1883, with regard to proof of debts generally : Sect. 37. "Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise, or breach of trust, shall not be provable in bankruptcy. '(3.) Save as aforesaid, all debts and liabilities, present or future, certain or contingent, to which the debtor is subject at the date of the receiving order, or to which he may become subject before his discharge by reason of any obligation incurred before the date of the receiving order, shall be deemed to be debts provable in bankruptcy." "(4.) An estimate shall be made by the trustee of the value of any debt or liability provable as aforesaid, which by reason of its being subject to any contingency or contingencies, or for any other reason, does not bear a certain value." "(5.) Any person aggrieved by any estimate made by the trustee as aforesaid may appeal to the Court." "(8.) 'Liability' shall, for the purposes of this Act, include any compensation for work or labour done, any obligation or possibility of an obligation to pay money or money's worth on the breach of any express or implied covenant, contract, agree may, therefore, be well briefly to indicate the principles and practice with regard to proof for annuities obtaining before the passing of the above Act. In the case of Ex parte Artis, 2 Ves. sen. 489, Lord Hardwicke thus states the general rule under the earlier bankruptcy laws:-"Where one is entitled to an annuity from another, which is not a rentcharge on land or on a specific part of his estate, but a personal annuity to be paid by that person who becomes bankrupt, it is only a general demand on him and his estate, and there is nothing than a debt on his estate but the arrears of the annuity at the time of the bankruptcy; for those accruing afterward become a debt after the bankruptcy." By the introduction of a bond for securing payment of the annuity, a mode of putting a value on the annuity was established. On default of payment the penalty became recoverable, and the amount thereof became a debt at law against the estate in respect of which proof was allowed to be made. But unless the forfeiture was incurred before the bankruptcy no proof was allowed for payment growing due after it. See Ex parte Le Compte, I Atk. 251; Pathorn v. Banks, Cowp. 540; Ex parte Burrow, 1 Bro. C. C. 268; Cotterel v. Hooke, 1 Doug. 97. ment or undertaking, whether the breach does or does not occur, or is or is not likely to occur or capable of occurring before the discharge of the debtor, and generally it shall include any express or implied engagement, agreement or undertaking, to pay, or capable of resulting in the payment of money or money's worth, whether the payment is as respects amount fixed or unliquidated; as respects time, present or future, certain or dependent on any one contingency, or on two or more contingencies; as to mode of valuation capable of being ascertained by fixed rules, or as matter of opinion." "SECOND SCHEDULE. "Rule 19. When any rent or other payment falls due at stated Periodical periods, and the receiving order is made at any time other than payments. one of those periods, the person entitled to the rent or payment may prove for a proportionate part thereof up to the date of the order, as if the rent or payment grew due from day to day." Nature and Incidents of Annuities in general. Stat. 12 & 13 Vict. c. 106. creditors ad- Contingent annuities. By the Bankruptcy Act, 1849, sect. 175, it was enacted: "That any annuity creditor of any bankrupt, by whatever assurance the same be secured, and whether there were or not any arrears of such annuity due at the bankruptcy, shall be entitled to prove for the value of such annuity, which value the Court shall ascertain, regard being had to the original price given for such annuity, deducting, therefore, such diminution in the value thereof as shall have been occasioned by the lapse of time since the grant thereof to the date of the fiat, or the filing of the petition for adjudication of bankruptcy" (7). It is be to observed that considerations as to the state of health of the annuitant are omitted by the section, and will not be taken into account in estimating the value of the annuity for purposes of proof. See Ex parte Fisher, 2 Gl. & J. 102. The improved value of property, if property and not money was given for the annuity, might perhaps be taken into consideration (see Robson on Bankruptcy, 224), but not the depreciation of money, Ex parte Webb, Ibid. 29. As to proof for annuities granted in consideration of giving up the goodwill of a business, see Ex parte Saxe, 2 D. & C. 172; Ex parte Annandale, 4 D. & C. 511; Ex parte Scholes, 1 M., D. & De G. 384; 4 Jur. 1189. It has been decided in several cases that under stat. 6 Geo. 4, c. 16, s. 54, contingent annuities might under certain circumstances be provable in bankruptcy. See Ex parte Van Leythusen, 2 M. & A. 519; Ex parte Parratt, Ibid. 626. So in Ex parte Broadley, 2 M., D. & De G. 524, it was held that under that section the trustees of a marriage settlement might prove against the estate of a bankrupt husband in respect of the value of an annuity, for which he had given his bond to them, in favour of his wife who was still living, in case she should survive him. Under the repealed Bankruptcy Act, 1869, proofs were admitted in respect of annuities dependent on (1) Where the so-called annuity is merely of the nature of interest on a loan transaction no proof in respect of it was allowed: Ex parte Robinson (LL.J.), 31 L. J. (N. S.), Bank. 12. contingencies which were formerly held to be incapable of estimation. Thus in Butt v. Jackson, L. R., 4 C. P. 259, where an annuity was granted determinable on breach by the grantee of stipulations that he would use his best endeavours to extend the business of the grantors, and not by any act, &c. injure the same, and that he would not carry on a similar business within a certain district, it was held that the conditions for defeasance were so uncertain as to render the value of the annuity incapable of estimation, and consequently not provable under stat. 12 & 13 Vict. c. 106, s. 75. But in the more recent case of Ex parte Jackson, 20 W. R. 1023, where the annuity deed contained similar stipulations (except as to endeavouring to extend the grantor's business), it was held that the grantee's claim in respect of his annuity was provable under sect. 31 of the Bankruptcy Act, 1869. So also with regard to deeds of separation. Nature and Annuities in Incidents of general. determinable cohabitation. In Parker v. Ince, 28 L. J. (N. S.), Ex. 189, it was Annuity held that an annuity determinable on future cohabi- on future tation was not provable in bankruptcy, inasmuch as the contingencies on which the cesser depended were incapable of estimation. And this decision was followed in the later case of Mudge v. Rowan, L. R., 3 Ex. 85. In Ex parte Naden, L. R., 9 Ch. 670, where a bankrupt had gone through the form of marriage with his deceased wife's sister, and subsequently on separation from her had covenanted to pay to her an annuity determinable if they should live together again, it was held that the condition might be disregarded inasmuch as it was incapable of performance if legal cohabitation was intended, and contra bonos mores if otherwise; and that accordingly the value of the annuity was capable of estimation and provable. But in the later case of Ex parte Blakemore (C. A.), 5 Ch. D. 372, it was held that an annuity during the life or widowhood of the grantee is capable of estimation, and proof will be admitted for the value of the future payments as ascertained by an actuary; and in a still more recent case, the value of an annuity granted by a separation deed, and determinable in case the wife should not live a |