No. 112
16th September 1867
My Lord Duke,
I have the honor to forward an authenticated and two plain copies of an Ordinance of the late Session of the Legislative Council of this Colony entitled;No 32.Manuscript image No 32. An Ordinance to give to Mortgages certain powers now commonly inserted in Mortgages.
I add the report of the Attorney General and also a protest of Mr Justice Begbie against the allowance of the measure. These papers were not before me at the time when I allowed the Bill. I hardly know what importance Your Grace will attach tothem.Manuscript image them.
I have the honor to be
My Lord Duke
Your most obedient
humble Servant
Frederick Seymour
Minutes by CO staff
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CC 4 Nov
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Sir F. Rogers
This Ordinance by the first 4 sections adopts part of the Imperial Act 23 & 24 Vict c. 145, with the exception that 3 months are substituted for 6 months.
By sections 5, 6 & 7 a mortgagee—subject to any conditions which may be imposed by the Court—is authorized to bid for and to purchase the mortgaged property. Mr Begbie strongly protests against this power being given to the mortgagee. One manifest objection which may be made to the proposed measure is thatManuscript image the mortgagee would manage to buy in the property at a low price, and then sue the mortgager for the balance. But even as the Ordinance now stands, the Court has sufficient power vested in it to prevent such an injustice being perpetrated (see sect 6) by affixing conditions as to notice & conduct of the sale and otherwise as shall appear just.
I think however it would be desirable to have a clause inserted to the effect that a mortgagee, who so purchases, should be deprived of any further remedy under the covenant for the balance of the mortgage money.
There is a suspending clause in the Ordinance; & I should be disposed to inform the Governor that H.G. is prepared to sanction this Ordinance when an Ordinance has been passed containing a clause to the above effect.Manuscript image Mr Begbie also objects to section 8 of this Ordinance, but it adopts the provisions of sect 15 of the Imperial Act. It enables the person who exercises the power of sale to vest in the purchaser the Estate and interest which the mortgager had power to dispose of. This the purchaser has certainly a right to require & with less no purchaser would be contented.
HTH 6/11
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I agree.
FR 6/11
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I do not think that SS 8 wd have the effect imputed to it by Mr Begbie. It seems to me that the 3 months is too short & shd be 6.
B&C 7/11
Documents enclosed with the main document (not transcribed)
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H.P.P. Crease, Attorney General, to Seymour, 19 August 1867, reporting on the ordinance as per despatch.
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Memorandum, M.B. Begbie, 20 July 1867, objecting to the proposed mortgage ordinance, with explanation.
Other documents included in the file
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Draft reply, Buckingham to Seymour, No. 80, 13 November 1867 requesting changes to “Ordinance No. 32 … "An Ordinance to give to Mortgagees certain powers now commonly inserted in Mortgages,"” which will allow Buckingham to “submit the Ordinance for Her Majesty's confirmation.”