reasonable conditions of sale;" 2ndly, to insure against fire, and to add the premiums to the principal money; and, 3rdly, to appoint a receiver (§ 11).

Now, there are several objections to this section. In the first place, the usual custom at present is to lend money for six months, and to give a power of sale (in certain events) immediately after the expiration of such six months. The statute, however, gives the power at the expiration of a year after the money has become payable; so that the power will not arise, under the first of the contingencies of the above section, until after the expiration of eighteen months after the date of the mortgage. In the next place, the sale can be made subject only to reasonable conditions of sale, thus throwing the onus on the purchaser of determining what are reasonable conditions, a point not easy in many cases to decide. The practice at the present day, moreover, is to leave the mortgagor to his remedy in damages against the mortgagee, and not to incumber the purchaser's title with any question as to the reasonableness or unreasonableness of the conditions under which the mortgagee has sold. Conveyancers, however, will probably obviate the objections here alluded to, by providing that the power shall arise after the expiration of six months from the date of the mortgage, and that the purchaser shall not be concerned to inquire as to the reasonableness of the conditions of sale.

In the third place, the mortgagee will have power to insure to any amount, no limit being mentioned in the statute. And, lastly, a power to appoint a receiver is not a usual power in a mortgage, and should not have been given by statute, except in cases where the deed expressly declares that the mortgagee shall have such a power. The statutory power, it is true, may be negatived by express declaration (§ 32), but this we think is not the proper mode of dealing with respect to unusual powers. The next section gives the mortgagee power to give receipts for purchase money (§ 12), and the following four sections deal with the notice to be given to the mortgagor before sale, the application of the purchase-money, and the conveyance to the

purchaser. The notice to be given is similar to that now usually required, and the purchaser is properly protected from irregularities in the sale (§ 13). The purchase-money is to be applied, first, in payment of the costs of the sale, secondly, in payment of interest, thirdly, in payment of principal, and the residue is to be paid to the mortgagor (§ 14). Power is conferred on the mortgagee to convey or assign to the purchaser the property sold "for all the estate and interest" of the mortgagor, except that in the case of copyholds the beneficial interest only of the mortgagor is to be conveyed by the purchase deed (§ 15). By this section, therefore, a mortgagee of leaseholds mortgaged to him by demise, is enabled to assign the reversion to the purchaser, so as to vest the whole leasehold interest in him-a power which we think is an extremely useful and proper one. The custom, formerly much in vogue, for mortgagors seized in fee to effect mortgages by way of demise, seems now to be out of date; but if it hereafter be occasionally followed, we apprehend the mortgagee would have power under this section to sell the fee simple-a power which however may be restricted by the mortgage deed (§ 32).

After the time when the power of sale has become exercisable, the mortgagee may call for all the title-deeds in the mortgagor's possession, and where the legal estate is outstanding in a trustee, may call for a conveyance of such estate (§ 16).

Next follow six clauses relative to the appointment, powers, &c., of the receiver, when the power to appoint one has arisen. The mortgagee may appoint as receiver the person named in the mortgage for that purpose; if no person be so named, the mortgagee may require the mortgagor to appoint a proper person as receiver, and if then no appointment be made within ten days, may himself appoint any person he may think fit (§ 17). The receiver is to be deemed to be the agent of the mortgagor (§ 18); he is to have power to demand, recover, and give receipts for the rents of the mortgaged property (§ 19); and may be removed "by the like authority, or on the like requisition, as before provided with respect to the original appointment of a receiver, and new receivers may be appointed from time to time" (§ 20). It

would appear, from the wording of sect. 17, that if a person be named as a receiver in the mortgage deed who should die before being appointed receiver by virtue of that section, or who should refuse or become incapable to act as receiver, the mortgagee cannot require the mortgagor to appoint, and cannot himself appoint, any other person as receiver, for those powers are only given in the event of no person being named in the deed. Moreover, there does not appear to be any provision in the Act for the 'appointment of a new receiver upon the death, retirement, &c., of any receiver, for we apprehend that the portion of sect. 20, which we have quoted above, does not apply to these cases.

The receiver appointed under the Act, is entitled to retain such a commission, not exceeding five per centum on the gross amount of all money received, as shall be specified in his appointment, and if no amount shall be so specified, then five per centum on such gross amount, (§ 20;) so that the mortgagor, on the requisition of the mortgagee, must under § 17 appoint a receiver, but under § 21 may specify so small a commission as to deter him from acting, and, although the mortgagee may require the removal of any receiver, yet the same process may be repeated ad infinitum. It is not a little curious that the acceptance in writing of the office is not made an essential ingredient of the appointment of a receiver; and it is still more curious that several of these sections provide that "every receiver appointed as aforesaid "—that is, appointed by the mortgagor or mortgagee, and whether the person appointed be willing to act or not—shall do certain specified acts.

For these reasons we think, that the four receiver clauses we have above referred to cannot be safely relied on, and that prudent conveyancers will, in all cases, negative their application. The remaining two clauses, however, are unobjectionable. The receiver is to insure, if directed so to do by the mortgagee (§ 22); and the money received by him is to be applied first in payment of taxes and rates, and of his commission, and of the premiums on insurances, and next in payment of all interest accruing due under the mortgage, and the residue is to be paid to the mort

gagor (§ 23). The last section in this part of the Act enacts that the powers and provisions contained in that part, relate only to mortgages to secure money.

PART III.

This Part opens with an enactment, that trustees may invest their trust-money "in any of the parliamentary stocks, or public funds, or in government securities," and may vary such investments, and may call in trust funds invested in any other securities (sec. 25). The use of this section is very questionable, and we apprehend that, notwithstanding this enactment, and section 32 of Lord St. Leonard's Act (which, by the way, gives no power to vary securities), the usual trusts for investment will still continue to be used.

The next three sections are extremely well drawn, and will altogether obviate the necessity of inserting the usual powers of maintenance, and of appointing new trustees in settlements and wills (sects. 26-28). The following section was, we believe, inserted in the House of Commons: it enacts that the receipts of trustees shall be effectual discharges for money (sect. 29), so that now we have no less than three distinct parliamentary enactments relating to the receipts of trustees and mortgagees

-one in Lord St. Leonards' Act (22 & 23 Vict., c. 35 s. 23); and two in the Act we are now considering (sects. 12 & 29); but unfortunately they all differ in their terms, and none of them apply to the receipt by trustees of stocks, funds, securities, or other property, so that the ordinary receipt clause will, in spite of the good intentions of Lords St. Leonards and Cranworth, find its way into wills, if not into settlements and mortgages.

The last clause in this Part gives to executors the power, now invariably inserted in well-drawn wills, to pay the debts owing by the testator, and to accept composition and give time for payment of debts owing to him (§ 30). The only defect in this section is, that it does not in terms provide that time may be allowed for payment of debts due to the testator, either with or without taking security-a power which executors ought unques

tionably to have, and which is given in the best "common forms " of the present day. Lord St. Leonards' Act contains an ill-drawn trustees' indemnity clause, and the present Act does not repeat it.

PART IV.

The miscellaneous provisions in this Part provide that, for the purposes of the Act, a person shall be deemed to be in possession, although his estate may be incumbered (§ 31); that any of the powers given by the Act may be negatived or varied by the deed or will (§ 22); that nothing in the Act shall be deemed to empower any person to deal with the rights of any persons, except to the extent to which they might have dealt with such rights if the deed or will had contained express powers so to deal with the same (§ 23); that the provisions of the Act, "except as hereinbefore otherwise provided," 1 shall extend only to persons acting under deeds and wills executed after the passing of the Act (§ 34); and that the Act shall not extend to Scotland (§ 35).

1

The Act, though better drawn and far more accurate than most of the measures which find their way into our Statute Book, is, as we have before shewn, imperfect in some respects, and might readily have been made more complete. For instance, we do not see why the mortgage clauses should not have applied to personal as well as to real estate. Mortgages of policies, reversionary interests in personal property, &c., are not uncommon ; yet to such mortgages the Act does not apply. Again, we not unfrequently meet with mortgages of limited interests in realty, in which the mortgage money is further secured by means of life policies. In such cases the mortgage clauses in the Act could not be relied on, for under them no power of sale would be given over the policies, which form an essential part of the security.

Further, covenants for title are invariably inserted in mortgage deeds, and there seems to be no reason why, by force of the statute, they should not be implied in all mortgages.

We are unable to explain the meaning of this exception. It apparently refers to provisions which are not now in the Act.