CO129-164 - Sir Kennedy - 1873 [7-9] — Page 189

Stong Kong-

No 182- 16th

July, 1873

Governor

Sir Arthur Kenn

Ло

Kennedy,

*

se. limb,

eB.

The Right Honorable

The Earl of Kimberly-

Relief of Prustees and

Executors Ordinance (417 of 1873.).

Transmits,

with

w

as to the Salary of Official Ernisice

remarks

the

193221

Report of the Attorney General on Ordinance No. 7 of' 1873.

The Provisions of the earlier Imperial Acts for the Relief of Trustees were extended to this Colony by Ordinance No. 7 of 1856. Those Acts are the 10th and 11th Vic., c. 96; the 12th and 13th Vic., c. 74; the 13th and 14th Vic., c. 60; the 15th and 16th Vic., c. 55.

The present Ordinance extends to this Colony certain further Provisions for the Relief of Trustees and Executors contained in more recent Imperial Acts, namely, Sections 21, 26, 27, 30, 31 and 32 of the 22nd and 23rd Vic., c. 35; Section 9 of the 23rd and 24th Vic., c. 38; and Sections 1 to 3, 25 to 30, and 32 of the 23rd and 24th, Vic,, e. 145.

The Imperial Acts brought into force in this Colony by Ord- inance No. 7 of 1856 were extended merely by One Section which referred to a Schedule containing the Titles of these Acts.

This mode of extending Imperial Acts (which is now no longer followed) has been found inconvenient in practice, especially with reference to the Act 10 and 11 Vic., c. 90, doubts having arisen as to the particular Officer in the Colony upon whom some of the functions imposed by the Act should devolve,

For this reason the Act in question is by this Ordinance ex- punged from the Schedule of Ordinance No. 7 of 1856, and its Provisions are re-enacted in a more convenient form; and its very useful Provisions relating to the Summary Administration of Trust Estates are extended to Land, as in this Colony all Lands are held under Crown Leases, and no difficulties of Tenure and Title ever arise.

The Designation of "Official Trustee" is taken from the Indian Act on the same Subject.

EIVED

C.0.

9 SEP

1873

Order XII of the consolidated Orders of the Court of Chancery, which contains the Rules of Practice, at present in force in England under the Act, are, with slight modifications, contained in a Schedule to the Ordinance. They differ but slightly from the old Rules of Practice contained in the Orders of the Court of Chancery, of the 10th of June, 1848, under the same Act which were introduced together with tlie Act by Ordinance No. 7 of 1856, One of the most useful Provisions of the 23rd and 24th Vic., e. 35, as to the Distribution of Assets by Executors has already been extended to the Colony by Ordinance No. 9 of 1870, and is therefore omitted in this Ordinance.

Section 2 is the only one which requires particular notice. It is taken from Section 21 of the 22nd and 3rd Vic., c. 35, and for technical reasons, will prove of special use in this Colony where the tenure of land is leasehold. Under the present Law a Person cannot constitute himself Assignor and Assignee of por- sonalty in the same Instrument and therefore upon the ap- pointment of a new Trustee of Leaseholds two Deeds are requisite, the Property being assigned to a Provisional Trustee upon Trust to re-assign it to the new Trustee and the continuing Trustees, so as to secure the unity of Title which is necessary to the creation of a joint tenancy.

This Section which empowers persons to assign chattels real to themselves jointly with others will remedy the inconvenience of the circuity of Transfer in the case of the appointment of a new Trustee of Leaseholds which still exists in this Colony as it existed in England before the passing of the Imperial Act from which it is taken.

The language and objects of the other Sections are so clear as to render any particular explanation of them scarcely necessary, I should mention, however, that by Section XXV the Ordinance is made retrospective. This was necessary because the most important Provisions are Re-enactinents of the previous Law which is repealed by Section I, and the rest of the Ordinance con- sists of enabling Clanses which cannot possibly prejudice any Rights, but must on the contrary prove a boon to all Parties in- terested under Instruments which it affects. Without this Clause, the Ordinance would be of no practicable utility for many years to come,--whereas there is every reason to believe that it will at once be largely availed of, and prove a most beneficial measure of Relief to Trustees and Executors in the Colony.

J. PAUNCEFOTE,

Attorney General,

187

2 Enclosures-

14th July, 1873.

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