No. VII.

or by virtue of these presents, UPON TRUST, first, to defray the incidental expenses incurred in receiving or recovering the same; Assignment of Simple Contract SECONDLY, to retain unto him the said (mortgagee), his executors, Debts as a administrators or assigns, the said sum of 350l. and interest for Mortgage Security, &c. the same, at the rate of 51. for every 100%. by the year, to be computed from the day of the date of these presents, or so much of the said principal moneys and interest as shall be then owing upon this mortgage security; AND THIRDLY, to pay over the surplus money (if any) unto the said (mortgagor), his executors, administrators or assigns. [INSERT proviso for redemption, ut ante, No. I., clause 7, p. 252; ALSO, covenant for payment of principal and interest, ut ante, Section II., No. I., clauses 10 and 11, pp. 37, 38.]

money

Covenant from

mortgagor that

8. AND ALSO that the said several debts or sums of hereby assigned, and specified and set forth in the schedule here- debts are unto annexed, are now actually due and owing from the said actually due. several persons therein named unto the said (mortgagor), in the same schedule mentioned. [ADD covenant from mortgagor that he will not revoke power of attorney, &c., ut ante, No. V., clause 8, p. 267; ALSO covenant for further assurance, ut ante, No. I., clause 12, p. 254; AND proviso that mortgagee shall not be compelled to sue for debts, ut ante, No. V., clause 9, p. 267.]

IN WITNESS, &c.

THE SCHEDULE TO WHICH THE ABOVE-WRITTEN INDENTURE
REFERS.

No. VIII.

ASSIGNMENT OF A JUDGMENT DEBT BY WAY OF MORTGAGE
SECURITY. (a)

Parties

Recital of

warrant of attorney.

Practical observations.

A.D. 18

1. THIS INDENTURE, made the day of BETWEEN (mortgagor), of, &c., of the one part, and (mortgagee), of, &c., of the other part.

2. WHEREAS by a warrant of attorney, dated the day of , (debtor), of, &c., empowered certain attorneys therein named to enter up judgment against him in Her Majesty's Court

(a) In mortgages of a judgment debt, the judgment should be recited, and if such judgment has been entered up upon a warrant of attorney that fact should be recited also. The debt itself should be assigned with power of attorney to sue for it, and in framing the latter clause, care must be taken to insert a power to appoint a substitute or substitutes, otherwise an assignee of the mortgage would be unable to sue upon it; for the deed of assignment, standing alone, passes no more than a mere chose in action, which at law is not assignable, and therefore execution for this can only be obtained from the original assignor, who is alone in the eye of the law the attorney of the original creditor. In Ireland the assignee of a judgment, in the case of judgments confessed, but not otherwise, is enabled to sue in his own name; so that, in a case so situated, it will not be necessary to insert a power of attorney from the assignor to authorize the assignee to sue for it in his own name (Ö'Callaghan v. Marchioness of Thomond, 3 Taunt. 82); still it will be a more correct mode, as well as prudent course, to insert a power of attorney in the latter, as in the other cases.

No. VIII.

a Judgment Debt by way

of Mortgage

Security.

of Queen's Bench (Common Pleas, or Exchequer, as the case may be), in an action of debt at the suit of the said (mortgagor), for the Assignment of sum of 750%. for moneys borrowed, besides costs of suit; and by a defeazance written under the said warrant of attorney it was declared that the same was given for the purpose of securing to the said (mortgagor), his executors or administrators the payment of the said principal sum of 750l, and interest thereon at the rate of 51. for every 1007. by the year, on the ensuing.

day of

next

for loan.

3. AND WHEREAS judgment was entered up against the said of agreement (debtor) upon the said warrant of attorney in Her Majesty's Court of Queen's Bench (or Common Pleas, or Exchequer, as the case may be), on the

day of

is still due, with

4. AND WHEREAS the said principal sum of 750l. is still due That principal to the said (mortgagor), upon his recited warrant of attorney, some arrear of together with an arrear of interest, amounting altogether to the sum of £

interest.

for loan.

5. AND WHEREAS the said (mortgagee), at the request of the of agreement said (mortgagor), agreed to lend him the sum of 500%. upon the security of the said recited judgment.

6. NOW THIS INDENTURE WITNESSETH, [CONTINUE testatum Testatum. down to the actual assignment, ut ante, No. I., clause 4, p. 252.] HE the said (mortgagor) DOTH by these presents assign, transfer, and set over unto the said (mortgagee), ALL THAT the aforesaid judgment debt or sum of 7501., and all and every sum and sums of money now or hereafter to become due, either for principal and interest, in respect thereof; TOGETHER with the said judgment, and all benefit and advantage to be derived therefrom, and all the estate, right, title and interest of him the said (mortgagor) therein.

7. TO HAVE, HOLD, RECEIVE, AND TAKE the said judgment Habendum. debt, and all and other the premises hereby assigned, unto the said (mortgagee), his executors, administrators and assigns, for his and their

proper moneys, chattels and effects, and for his and their absolute use and benefit. [INSERT power of attorney, ut ante,

No. VIII. No. V., clause 6, p. 266. THEN ADD clause that mortgagee shall Assignment of stand possessed of moneys recovered, ut ante, No. VII., clause 7, a Judgment

Debt by way p. 274; that judgment debt is still due, and that mortgagor will not of Mortgage revoke power of attorney, nor release debt; ut ante, No. V., clauses 7 and 8, p. 267. AND for further assurance; ut ante, No. I.,

Security.

clause 12, p. 254.]

IN WITNESS, &c.

No. IX.

MORTGAGE OF A LEGACY.(a) VARIATION WHERE THE SUB-
JECT-MATTER OF THE MORTGAGE IS A TRUST FUND IN THE
COURT OF CHANCERY.

Practical

(a) In the mortgage of a legacy it will be proper to recite the will by which it was bequeathed; the death of the testator, and the probate of his will.. The legacy observations. should be then assigned to the mortgagee, but as it is incapable of being sued for in a court of law, it would be useless to insert a power of attorney to that effect but where the assignment should be of a fund in the Court of Chancery then the following form should be inserted :

:

where the

A. "AND the said (mortgagor) DOTH by these presents appoint Form of power the said (mortgagee), his executors, administrators and assigns, to be of attorney the true and lawful attorney and attorneys irrevocable of him the subject-matter said (mortgagor), his executors or administrators, and in his or is a trust fund their name or names, to authorize any barrister or barristers at

of assignment

in the Court of Chancery.