per cent. Consolidated Annuities, and the payment of the divi- No. XXIII. dends in the meantime, should be secured by a mortgage of the Loan of Stock hereditaments and premises hereinafter described, as also by the (c) covenant of the said (mortgagor), in manner hereinafter appearing,

secured by Mortgage of Real Estate,

with Covenant from Mortgagor to retransfer, with Powers of Sale and Covenants.

Testatum;

mortgagor conveys to

mortgagee in

4. NOW THIS INDENTURE WITNESSETH, that in pursuance of the said agreement, and in consideration of the sum of 1,940Z. sterling, the produce of the said sum of 2,000l. Three per cent. Consolidated Annuities, so as aforesaid paid by the said (mortgagee) to the said (mortgagor) on the execution hereof, the receipt of fee. which the said (mortgagor) hereby acknowledges, and therefrom doth release, exonerate and for ever discharge the said (mortgagee), his heirs, executors, administrators and assigns; HE the said

And Grose, J,, has observed, that the true measure of damages in all these cases, is, that which will completely indemnify the plaintiff for the breach of the engagement. If the defendant neglects to replace the stock at the day appointed, and the stocks afterwards rise in value, the plaintiff can only be indemnified by giving him the price of it at the time of the trial. It is no answer to say that the defendant may be prejudiced by the plaintiff's delaying to bring his action, for it is his own fault that he does not perform his engagement at the time, or he may replace it at any time afterwards, so as to avail himself of a rising market. Lawrence, J., also said, " suppose a bill were filed in equity for the specific performance of an agreement to replace stock on a given day, which had not been done at the time, would not a court of equity compel the party to replace it at the then price of the stock, if the market had risen in the meantime?" (2 East, 212, 213.) The same measure of damages was also adopted in the case of Pope v. Burke (Sittings after Michaelmas Term, 1799, at Westminster, C. B. cor. Lord Eldon), 2 East, 213, n. (a) In M'Arthur v. Seaforth, it was however held, that in an action upon a bond for not replacing stock, the obligee is not entitled to special damage for what he might have made if it had been sooner replaced, unless he shows that he demanded payment for that express purpose: (12 Taunt. 257.) And in a more recent case (Harrison v. Harrison, 1 Car. & P. 412), the rule adopted on a writ of inquiry on a bond to replace stock, was, to take the price at the day of trial, or on the preceding day, and not at the option of the plaintiff at that day, or on the day on which it ought to have been replaced: (see also Downes v. Back, 1 Stark. N. P. C. 318.) In equity it seems to have been considered that the obligee is entitled to the value of the stock at the time of the transfer, with interest at five per cent. to the date of the Master's report; upon the principle of the fair measure of damage sustained by the breach of the condition by not transferring the stock at the time appointed, in consequence of which the penalty of the bond became forfeited at law; and also on the habit of the court as to compensation where a trustee improperly sells out; in which case the cestui que trust has an option either to have the stock, or the money produced by it with interest: (Forrest v. Elwes, 4 Ves. 497.)

(c) If a bond is given, insert here

“bond and”

No. XXIII. (mortgagor) DOTH by these presents grant and release unto the Loan of Stock said (mortgagee), ALL [HERE DESCRIBE parcels; ALSO insert by Mortgage of general words, and habendum, ut ante, No. I., clauses 5 and 6,

secured

Real Estate,

with Covenant P. 33.]

from Mortgagor to retransfer,

with Powers of

Sale and Covenants.

Proviso for redemption.

Covenant from mortgagor to replace stock.

year

day of

,

,

5. PROVIDED ALWAYS, AND IT IS HEREBY DECLARED AND AGREED, that if the said (mortgagor), his executors or administrators, shall on the which shall be in the , or in case the books of the said Governor and Company of the Bank of England for the transfer of Three per cent. Consolidated Annuities shall then be closed, then do and shall on the first day after the said day of on which such books shall be open for making transfers of such stock, well and duly transfer or cause to be transferred the sum of 2,000l. Three per cent. Consolidated Annuities, in the said books of the said Governor and Company, into the name or names of the said (mortgagee), his executors, administrators or assigns, and duly pay or cause to be paid unto the said (mortgagee), his executors, administrators or assigns, such sum and sums of money as shall be equivalent to the dividends which would have been payable to him or them in respect of the said sum of 2,000l. Three per cent. Consolidated Annuities, in case the same had not been sold out as aforesaid, and at the time at which such dividends would have become payable, in case such transfer had not been made, without deduction; then the said (mortgagee), his heirs and assigns, will, at the request and costs of the said (mortgagor), his heirs or assigns, reconvey the said hereditaments and premises unto the said (mortgagor), his heirs or assigns, free from all incumbrances occasioned therein by the said (mortgagee), his heirs or assigns, in the meantime. [INSERT HERE power of sale of mortgaged premises in default of payment; AND ALSO foreclosure clause; ut ante, No. I., clauses 8 and 9, pp. 35, 37.]

6. AND the said (mortgagor) doth hereby for himself, his heirs, executors and administrators, covenant with the said (mortgagee), his heirs, executors, administrators and assigns, that he the said (mortgagor), his heirs, executors or administrators, will well and truly transfer, or cause to be transferred into the names of the said (mortgagee), his executors, administrators and assigns, the sum

secured

with Covenant

of 2,000l. Three per cent. Consolidated Annuities, on the day, at No. XXIII. the time, and in manner hereinbefore appointed for the transfer of Loan of Stock the same; and in the meantime will well and truly pay or cause by Mortgage of to be paid unto the said (mortgagee), his executors, administrators Real Estate, and assigns, such sum and sums of money in lieu of the dividends from Mortgagor to retransfer, in respect of the said sum of 2,000l. Three per cent. Consolidated with Powers of Annuities, on or at such days or times, and in such shares and proportions as is and are hereinbefore appointed for payment of the same respectively. [HERE INSERT general covenants from mortgagor, for title; for quiet enjoyment, freedom from incumbrances, and for further assurance; and from mortgagee not to exercise power of sale without giving mortgagor due notice, and that the latter shall enjoy until default; ut ante, No. I., clauses 12 to 18 inclusive, pp. 38, 39, 40.]

IN WITNESS, &c.

Sale and Covenants.

SECTION III.

MORTGAGES OF LEASEHOLD ESTATES, AND LIFE INTERESTS.

No. I.-MORTGAGE BY WAY OF UNDERLEASE, WITH USUAL COVENANTS, AND COVENANT TO INSURE AGAINST DAMAGE BY FIRE. VARIATION, WHERE THERE IS A POWER TO DISTRAIN FOR THE INTEREST.

No. II.-MORTGAGE OF LEASEHOLD TENEMENTS BY WAY OF ASSIGNMENT. VARIATION WHERE THE LEASE IS RENEWABLE. ALSO, WHERE A POLICY OF ASSURANCE UPON ONE OF THE LIVES WHEREON THE LEASE IS DETERMINABLE IS ASSIGNED BY WAY OF COLLATERAL SECURITY.

No. III.-MORTGAGE BY WAY OF UNDERLEASE FOR THE RESIDUE OF A TERM OF NINETY-NINE YEARS, DETERMINABLE ON THREE LIVES, EXCEPTING THE LAST DAY OF THE TERM; AND ASSIGNMENT OF A POLICY OF ASSURANCE IN THE LAW PROPERTY ASSURANCE SOCIETY BY WAY OF COLLATERAL SECURITY.

No. IV.-MORTGAGE BY A TENANT FOR LIFE FOR SECURING THE REPAYMENT OF £800, AND INTEREST, BY FOUR YEARLY INSTALMENTS, AND ASSIGNMENT OF A POLICY OF ASSURANCE BY WAY OF COLLATERAL SECURITY.

No. V.-MORTGAGE OF RENTS AND TRUST MONEYS, WHICH HAVE BEEN

DEVISED UPON TRUST FOR THE SEPARATE USE OF A MARRIED

WOMAN FOR LIFE, AND AFTER HER DECEASE UPON TRUSTS FOR SALE
FOR THE BENEFIT OF ALL HER CHILDREN LIVING AT THE TIME OF HER
DEATH, THE HUSBAND, WIFE, AND CHILDREN BEING ALL CONCURRING
PARTIES, AND A POLICY OF ASSURANCE UPON ONE OF THE CHILDREN'S
LIVES BEING ASSIGNED BY WAY OF COLLATERAL SECURITY.

No. VI.-MORTGAGE BY TRUSTEES OF 1,000 YEARS' TERM CREATED BY A MARRIAGE SETTLEMENT FOR THE PURPOSE OF RAISING MONEYS FOR THE TRUSTS OF THE SETTLEMENT.

No. VII.-MORTGAGE OF AN EQUITY OF REDEMPTION OF LEASEHOLD PREMISES BY WAY OF UNDERLEASE.

No. I.

MORTGAGE BY WAY OF UNDER-LEASE, WITH USUAL COVE-
NANTS, AND COVENANTS TO INSURE AGAINST DAMAGE BY
FIRE. VARIATION, WHERE THERE IS TO BE A POWER TO
DISTRAIN FOR THE INTEREST. (a)

10. That mortgagor is possessed of A. Power for mortgagee to distrain for

term.

interest in arrear.

1. THIS INDENTURE, made the

day of

A.D., 185,

Parties.

BETWEEN (mortgagor) of, &c., of the one part, and (mortgagee)

of, &c. of the other part.

(a) Mortgages of estates for years were in former times usually made by an Practical obserassignment of the whole term; but since it has been established that a mortgagee vations upon the to whom a term was assigned was liable to the rents and covenants of the advantages of original lease, in like manner as any other assignee of the premises, mortgages effecting a