foreclosure nisi, contained a specific devise of the mortgaged lands, but the devisor died before an account taken, or an order obtained for absolute foreclosure, it was held that as between the devisor and devisee, the mortgaged estate should be considered as realty, but should be personal estate for the benefit of creditors. This decision, it will be observed, did not in the least interfere with the case of Thompson v. Grant, or the doctrine in Casborne v. Scarfe, and Strode v. Russel (i). But by the 1 Vict. c. 26, every will is made to speak from the testator's death, and therefore a foreclosure or release obtained at any time during the testator's life will, as a general rule, in cases within that act avail the devisee.

A bequest of the money secured on mortgage will pass the estate if then foreclosed, and will not open the foreclosure (k).

A bequest of money secured on mortgage or by judgment is within. the Mortmain Act, 9 Geo. 2 (7). So a bequest of a sum of money to pay off an equitable charge upon lands is within that statute (m). So the lien which a vendor has for his purchase money (n).

A bequest of the principal of a mortgage debt will not pass the arrears of interest (o), and a bequest of the arrears of a mortgage will carry the interest only (p).

MISCELLANEOUS CHAPTER.

IN the 59 Geo. 3, was passed an act for establishing a registry of colonial slaves in Great Britain, and it was enacted that after the first day of January, 1820, no deed or instrument made or executed within the United Kingdom, whereby any slave or slaves in any of the said colonies should be intended to be mortgaged, sold, charged, or in any manner transferred or conveyed, or any estate or interest therein created or raised, should be good or valid in law to pass or convey, charge or affect any such slave or slaves, unless the registered name and description, or names and descriptions of such slave or slaves should be duly set forth in such deed or instrument, or in some schedule thereupon indorsed, or thereto annexed, according to the then latest registration, or corrected registration, of such slave or slaves in the office of the registrar of slaves.

By an act passed in the 3 & 4 Wm. 4, c. 73, slavery was abolished throughout the British colonies, and a sum not exceeding twenty millions was voted by Parliament as a compensation to the owners of the slaves or persons interested in them. The provisions therefore of the 59 Geo. 3, have become obsolete and useless.

In reference to the appointment of a receiver by a Court of equity, on application by the mortgagee, the rules appear to be that if the mortgagee, having the legal estate, neglect to take the precaution of an agreement with the mortgagor for the appointment of a receiver, he cannot obtain such appointment by order of the Court, but must proceed to eject the mortgagor (a), and he will be made to pay the costs of the motion for a receiver (b); if the first mortgagee be in possession, the Court will not, in general, on the application of a subsequent mortgagee, appoint a receiver (c), but the second mortgagee must redeem the first; and a charge of mismanagement and collusion is not sufficient ground on motion before answer, to take the possession from him (d); and in order to deprive a mortgagee of the possession, on the ground of mismanagement, the charge must be of a clear and specified nature (e). So as against trustees having the management of the estate, where there are prior charges and the management does not appear improper (ƒ). But if the first mortgagee be not in possession, a second mortgagee may have a receiver, without prejudice to the

(a) Berney v. Sewell, 1 Jac. & Walk.

647.

(b) Sturch v. Young, 5 Beav. 557; 12 L. J., Ch. 56, N. S.

(c) Berney v. Sewell, supra; et vide Codrington v. Parker, 16 Ves. 469.

Quarrell v. Beckford, 13 Ves. 377.
Faulkner v. Daniel, 3 Hare, 204.
(d) Berney v. Sewell, supra.

(e) Rowe v. Wood, 2 Jac. & Walk. 553.
(f) Barklay v. Lord Reay, 2 Hare,

306.

rights of the first (g), although the mortgagor has not appeared to the suit and is out of the jurisdiction (h).

In the case of a bill filed by an equitable mortgagee to enforce his security, a receiver will be appointed before answer, if the non-interference of the Court would expose the plaintiff to the danger of loss (i). And in cases of urgency the Court will, even before appearance, upon the motion of the equitable mortgagee, after notice served by special leave upon the mortgagor, appoint a receiver, although an injunction is not asked by the bill (k); and if the mortgagor is resident out of the jurisdiction, the Court will dispense with service of motion (1).

So where the debtor has agreed to give (m) a mortgage and has not performed the agreement, and the interest is in arrear (n); and in other cases where the right to the possession is the subject in dispute, and the title of the plaintiff appears to the Court to be the best, a receiver will be appointed as against the legal estate (o); and even as against the first mortgagee in possession a receiver will be appointed, if the party applying offer to pay off such mortgagee according to his own demand, and the latter refuse to accept what is due to him, or will not swear that anything is due; and the Court will oblige the latter to give security, on payment being made him of the sum that he swears to, to refund if it shall appear upon account that he has received too much (p). In a late case, where a bill for redemption was filed by a mortgagor against two mortgagees, the Master of the Rolls refused an application, made by one of the defendants, for the appointment of a receiver as against the mortgagor in possession, but seemed of opinion that it might be done upon petition, after notice to the plaintiff (9).

In a case where, by a contract for sale, the vendor was to convey at the end of five years, and in the meantime the vendee was to pay interest, out of the rents, on the purchase money, and the vendor had a power of re-entry on default of payment for twenty days, and the vendee mortgaged his interest under the contract in order to pay the interest due, and the vendor agreed to waive the power of re-entry, but afterwards entered under that power, the Court appointed a receiver, on the motion of the mortgagee, who had filed his bill against the vendor and vendee.

In a case where a husband had persuaded the trustees of his wife's marriage settlement to invest the trust fund, which was settled to her separate use without power of anticipation, in the purchase of real estate, in which he had previously contracted for a renewal of a lease held by him, and in the repairs of which he laid out a considerable sum of money, and the trustees had entered into the receipt of the rents in

consequence of some disagreement, a motion by the husband for a receiver was refused with costs (t).

A receiver will, it seems, be appointed, at the suit of a judgment creditor, of the profits of an office granted by letters patent (u).

A receiver will be appointed of a mortgage (part of a testator's estate) against a trustee, who by refusing to act has rendered a suit necessary (v).

In the case of Feistel v. King's College (w), the Master of the Rolls, after deciding on the validity of the assignment of the profits of the fellowship, said that he would either appoint a receiver of such sums as might be thereafter appropriated by the college for the dividend of the debtor, or adopt any other mode of securing the plaintiff's interest, which might be more satisfactory to the college.

When a receiver has been appointed by the Court, it would be contempt in the first mortgagee to proceed in ejectment, without the consent of the Court (x); and upon his application for such purpose the course has been either to permit him to bring ejectment, or to be examined pro interesse suo (y).

An examination pro interesse suo proceeds by interrogatories, and a reference to the Master to report, if the claimant has made good his title, and the report is set down for directions, and a final order made (z). It is not regular to take exceptions to the report (a). Though if it be thought that the Master has adopted some general principle which cannot be supported, the party complaining may bring that point before the Court (b). The order will be made as well against a receiver as sequestrators (c), and the effect of such an examination may in general be obtained on motion or petition (d).

After the Master's report has been confirmed, a reference to him may be obtained to calculate principal and interest and costs, and the rents in the receiver's hands are to be applied, first, in payment of costs, and then in reduction of the mortgage, and possession will be given up (e).

A receiver appointed by the Court should enter into a recognizance with two sureties (f), and the tenants are ordered to attorn, and pay their rents to him (g). If it is intended that his duty should exceed keeping down the interest, the order should specify it (h).

A receiver appointed on behalf of several mortgagees cannot be discharged without the consent of all (¿).

A receiver may, it seems, be made a party to a suit instituted by an

(t) Wiles v. Cooper, 9 Beav. 294. (u) Blanchard v. Cawthorne, 4 Sim. 566.

(v) Palmer v. Wright, 10 Beav. 234. (w) 10 Beav. 491, 509.

(x) Brooks v. Greathed, 1 Jac. & Walk. 178. Angel v. Smith, 9 Ves. 335. Anon. 6 Ves. 287. Bryan v. Cormick, supra.

(y) Vide 1 Jac. & Walk. 178; 9 Ves.

338.

(z) Hunt v. Priest, 2 Dick. 540. (a) Hamlyn v. Lee, 1 Dick. 94.

(b) Shewell v. Jones, 2 S. & S. 170. (c) Gomme v. West, 2 Dick. 472.

(d) Walker v. Bell, 2 Madd. 21. Dixon v. Smith, 1 Swanst. 457. Dickenson v. Smith, 4 Madd. 177; et vide 1 Jac. & Walk. 179, n.

(e) Walker v. Bell, supra.

(f) Mead v. Lord Orrery, 3 Atk. 244. (g) Rowley v. Ridley, 2 Dick. 630. (h) Gresley v. Adderley, 1 Swanst. 579.

(i) Largan v. Bower, 1 Sch. & Lef. 296. Banbrigge v. Blair, 3 Beav. 421.

incumbrancer against the owner of the property or other incumbrancers, though he is not a necessary party (k). In general, a receiver in a cause is not the proper party to originate proceedings, and if he is in difficulties, he should not apply to the Court unless the parties to the suit refuse to do so, or such parties have mismanaged the application (1).

The receiver will be compelled to bring in his accounts regularly from time to time to shew the actual balance in his hands, and he may be made to pay the costs of an application for that purpose (m), and he must not make interest of the monies that come to his hands during the times of passing his accounts (n).

The allowance made to a receiver depends upon the degree of facility or difficulty experienced in collecting the rents or monies to be got in (o). But if he defend an action, without the leave of the Court, he will not be allowed his costs (p).

When a petition against a receiver, charging him with default, has been dismissed with costs, and the petitioner is unable to pay them, the receiver may, even as against incumbrancers on the property, retain the costs out of his receipts (q).

With respect to receivers appointed by the mortgage deed, and not by the Court, a receiver so appointed, with directions to receive the rents on trust to make different payments thereout, is not, it seems, liable to an action at law for money had and received, without some acknowledgment on his part to constitute him a debtor (r).

Where by the terms of the deed of receivership the receiver is to be first paid all his expenses, but is not to be paid any remuneration for his trouble until after the payment of interest on the mortgages, and from the situation of the receiver (as being a solicitor practising in London), it is clear that he could not be expected to attend personally to the collecting of the rents, the salaries of agents, employed by him for that purpose, will be allowed as part of the expenses (s).

A receiver appointed by the mortgage deed, with power to receive the rents and eject tenants, is an agent of the mortgagee, authorized to give notice to quit, within the 4 Geo. 2, c. 28, s. 1, even, as it seems, though the appointment be made by the mortgagors with the consent only of the mortgagees, and though the mortgagors are only the beneficial owners, and their trustees join in conveying the legal estate and not in the appointment of the receiver (t). And even a receiver appointed by the Court is an agent lawfully authorized within the statute (u).

In a case where a mortgagor (tenant for life with power to charge), exercised that power and joined with the mortgagee in appointing a receiver, and the construction put upon the deed was, that the mortgagee and another creditor should receive the rents during the mort

vide Malcolm v. O'Callaghan, 3 M. & C.

52.

(p) Swabey v. Dickon, 5 Sim. 629. (q) Courand v. Hanmer, 9 Beav. 3. (r) Bartlett v. Dimond, 14 Mees. & W. 49; et vide Pardoe v. Price, 16 Mees. & W. 451; 16 L. J., Exch. 192, N. S. (s) Gilbert v. Dynely, 3 M. & G. 12. (t) Poole v. Warren, 8 Ad. & Ell. 582. (u) Wilkinson v. Colley, 5 Burr. 2694.