PUBLIC RECORD OFFICE
Reference :--
C.O. 882
8 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
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Art. 17.
Art. 19.
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bidders. The purchase price is then distributed among the creditors, the mortgage creditor then coming in according to his rank. The practical result of this in the case of the Government-there being no higher bidder is that for purposes of account the price paid by the seizing mortgagee must be sufficient to cover the mortgage debt and all charges, including the sequestrator's account; and that the Government is left with an estate on its hands which it has no machinery for working or even for parcelling out in small lots (morcellement). In the case of ordinary transfers of the property there is always the question whether the purchaser is a person whom the Government cares to accept as a mortgage debtor.
By the adoption of the rent-charge principle, all these inconveniences disappear. The annuities provide for the repayment of capital and interest; the possibility of the capital being repaid before the due date cannot arise; there is no question of the Government having to bid in the event of the seizure of the estate by any other creditor; the only concern of the Government is that the purchaser should be able to pay the annuity, and if the remedy for recovery in case of unpunctual payment is sufficiently drastic, there is no room for anxiety-except in one case, to be referred to presently-moreover, there is no impediment to the free transfer of the land. E have used the term "contract charge" as conveniently analogous to "rent-charge," which could not be used. I have further defined it as a contract running with the land" within the meaning of the law of England, and I believe that the elaborate definition in Article 16 (2) covers all possible cases of transfer. In (3) the mortgage privilege is attached to the charge. It seemed convenient to put the privilege over the estate last, failing realisation of the unpaid annuity from the cut crop and proceeds, the amount of the annuity being so small, compared to the value of the estate, that it is most improbable that recourse should be had to seizure of the estate. The "execution" provisions are contained in Article 18, and in paragraph iii., the last resemblance to a mortgage is swept away by removing the necessity of the mise à prix.
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I have drawn up a very special form of deed in the schedule, and, with the assistance of the Conservator of Mortgages, have simplified as much as possible the formalities of inscription without diminishing its legal effect. The cost of a notarial deed will also be avoided.
I trust that this important modification of the law of the Colony will meet with the Secretary of State's approval.
16. Article 17, which deals with cesser of liability on transfer of the estate is introduced by way of further security.
17. The further conditions of the advance set out in Article 19 are important; it will only be necessary in this report to indicate them:-
(i.) The tramway is to be laid with all reasonable diligence, power being taken to seize, if the condition is not complied with, without release of the estate from the charge.
(ii.) Sales of any part are declared to be null and void, power being taken to seize and replace any part sold on the estate.
(iii) The tramway is to be maintained in good order, power being taken to execute necessary repairs, recovering the cost in the same way as an annuity. (iv.) The estate is to be maintained in cultivation. This clause is based on the practical consideration that an estate cannot "go out of cultivation or be "abandoned" without what may be called "due notice." As there are always two and sometimes three crops on the ground at the same time, the way in which an estate will go out of cultivation is by failure to plant at a given time. But this will not interfere with the next crop. Power is therefore given to the Board directly there are signs of an estate going out of cultivation, which the expert will report, to require what is necessary to be done to restore it to its normal state of cultivation. In default, there must be seizure and sale, subject or not subject to the contract charge as the Governor may determine.
This is what may be termed the ultimate remedy by way of seizure, and it is the one occasion on which the Government may have to take over an estate. I believe, however, that the practical conditions under which estates are culti- vated are such that the chance of this happening is reduced almost to vanishing point.
In the event of the seizure and sale and the privilege being enforced so far as the capital of the loan is concerned, priority is given the Hurricane loan
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mortgage. Special instructions were given on this point by the Secretary of State. This is the only occasion on which there will be any clashing between the Hurricane and the Tramway loan.
(v.) The estate is not to be parcelled out without permission of the Governor, and this case regard will be had to the hurricane loan mortgages.
(vi.) The sale of part of the estate is not to be made without permission. (vii.) The tramway is to be insured against fire. In case of destruction the amount recovered under the policy may be devoted to the replacing the tram- way, as part of the original loan.
18. The liability in respect of the advance is to be joint and several, unless Art. 20. the estate is divided by process of law, when the Governor may sanction a division of the charge.
19. A right of entry for purposes of inspection is given to the expert, and penalties imposed for misapplication of the money advanced.
Enclosure 4 in No. 39.
F. T. PIGGOTT,
Procureur-General.
EXPLANATORY REPORT on Ordinance No. 44 of 1902, entitled an Ordinance " To amend Ordinance No. 34 of 1902 (The Mechanical Transport Loan Ordinance)."
December 26, 1902.
Whilst Ordinance No. 43 of 1902 was being considered; attention was specially directed to the question of currency both with regard to the payment and repayment of the advance. As already reported, the principle of exchange adopted in Ordinance No. 2 of 1898 was inserted, and it was thought expedient to introduce it also into No. 34 of 1902, the Mechanical Transport Loan Ordinance. Advantage was therefore taken of the special session of Council held to pass the Advances in Aid Ordinance, to introduce this short amending Ordinance.
The following amendments were also made :-
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SIR,
(A) The change in the definition of contract charge, already reported in
Ordinance No. 43 of 1902 was introduced;
(B) Words were introduced to give more elasticity to the form of the deed; and
(c) Some serious clerical errors are corrected. These had arisen owing to the short title of the Ordinance having been changed at the last moment, and through oversight the corresponding changes had not been made in the forms.
(No. 466.)
No. 40.
F. T. PIGGOTT,
Procureur-General.
GOVERNOR SIR C. BRUCE to MR. CHAMBERLAIN.
(Received January 26, 1903.)
[Answered by Nos. 43 and 50.]
Government House, Mauritius, December 27, 1902. REFERRING to your telegraphic despatch of the 17th instant and previous correspondence on the subject of assisting the sugar industry by advances for the cultivation of estates, I have the honour to transmit, herewith, for the signification of His Majesty's pleasure, Ordinance No. 43 of 1902,† entitled an Ordinance "To raise money for the purpose of making temporary advances to owners of sugar estates and bailleurs de fonds."
• No. 28.
↑ Not reprinted.
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