-

thenceforth, during the continuance of the security intended
to be hereby made, pay unto the said C. D., his executors,
administrators, or assigns interest, after the rate afore-
said, for the said sum of £- or for so much thereof
as shall for the time being remain unpaid, by equal half-
yearly payments, on the
day of
and the
day of in every year: AND THE SAID A. B. doth
hereby, for himself, his heirs, executors, and adminis-
trators, covenant with the said C. D., his heirs and assigns,
that he the said A. B. now hath full power to appoint
the said hereditaments and premises to the use of the
said A. B., his heirs and assigns, in manner aforesaid,
and free from all charges and incumbrances whatsoever;
and that the said A. B., and his heirs, and all other
persons having, or lawfully or equitably claiming, any estate,
right, title, or interest, in or to the said premises, or any
part thereof, shall and will at all times hereafter, upon the
request of the said C. D., his heirs or assigns, but at
the costs of the said A. B., his heirs, executors, or ad-
ministrators, do and execute, or cause and procure to
be done and executed, all such further acts and assurances
for more effectually assuring all the said hereditaments
and premises unto the said C. D., his heirs and assigns,
in manner aforesaid, as the said C. D., his heirs or
assigns, shall reasonably require: PROVIDED ALWAYS
that it shall be lawful for the said A. B., his heirs and
assigns, to hold, occupy, and enjoy the said hereditaments
and premises, and receive and take the rents, issues, and
profits thereof to his and their own use, until default shall
be made in payment of the said sum of £, or the in-
terest thereon, or some part thereof respectively, without
any interruption from the said C. D., his heirs or assigns:
PROVIDED ALWAYS, and the said C. D. doth hereby, for
himself, his heirs, executors, and administrators, covenant
with the said A. B., his heirs, executors, administrators, and
assigns, that if the said A. B., his heirs, executors, administra-
tors, or assigns, shall half-yearly, on every

and day of

-, until the

day of day of 18-, or

within one calendar month next after each of the said days respectively, pay to the said A. B., his executors, adminis

at

trators, or assigns, interest for the said sum of £
the rate aforesaid up to the same half-yearly days of pay-
ment respectively, and shall and do perform, observe, and
fulfil all and every the covenants hereinafter contained, then
and in such case, he the said C. D., his executors, admi-
nistrators, or assigns, shall not nor will, before the said

day of, 18—, call in or compel payment of the said principal sum of £, or any part thereof, or use or take any ways or means or proceedings whatsoever for obtaining the possession or the receipt of the rents, issues, and profits of the said hereditaments and premises, or any part or parts thereof (c): PROVIDED ALSO, and it is hereby

(c) The proviso in the text operates as a demise from the mortgagee to the mortgagor, for the term specified. (Wilkinson v. Hall, 3 Bing. N. C. 508; see, too, Powseley v. Blackman, Cro. Jac. 659; 5 B. & Ald. 605). But if before the expiration of the term the mortgagor become bankrupt, the estate may be sold by order of the Court of Bankruptcy. (Ex parte Bignold, 1 Dea. 151). Of course the power of sale (if there be one in the mortgage) should be worded so as to be exerciseable in the usual way. See Ex parte Bignold, (1 Dea. 151, 156), where, however, the power is not set forth. The power of sale ordinarily used in these precedents may be employed in mortgages of this description withoutalteration. The provision in the text, as to the observance of covenants, relates to those for insurance. The following proviso is sometimes introduced: (See Stanhope v. Manners, 2 Eden 197):—

MORTGAGE

FOR A TIME

CERTAIN.

or be compelled to accept payment.

Effect of making the loan for a term.

viso.

"Provided always, and it is hereby further agreed and de- Additional proclared, that if at any time or times, whilst the said principal sum o f£ shall continue on this present security, the interest thereon shall be in arrear and unpaid for one calendar month and upwards next after any day whereon half a year's interest shall become due or payable, and the interest being so in arrear, the said [mortgagee], his executors, administrators, or assigns, shall neglect or forbear to call in, or compel payment of the said sum of £, or shall accept interest for the same, then and in such case the said [mortgagee], his heirs, executors, administrators, or assigns, shall not thereby be prevented or precluded from calling in or compelling payment of the said sum of £— or the interest thereon, at any time before the said of, [the last day of the term], or from using or taking,

day

MORTGAGE

FOR A TIME
CERTAIN.

Assignment of policy of insur

ance.

Habendum.

Covenant for payment of premiums and duty.

further agreed and declared, that it shall not be lawful for the said A. B., his heirs, executors, administrators, or assigns, at any time before the said day of, 18—,

to oblige or compel the said C. D., his executors, administrators, or assigns, to receive the said sum of £- , or any part thereof: AND THIS INDENTURE FURTHER WITNESSETH, that, for the considerations aforesaid, the said A. B. hath assigned, and by these presents doth assign, unto the said C. D., his executors, administrators, and assigns, ALL THAT POLICY of insurance of the - fire insurance office, numbered, and dated, whereby the said messuages and buildings are insured against loss or damage by fire in the sum of £, and the full benefit and advantage of the said policy of insurance, and all monies to become payable by virtue thereof, TO HOLD AND RECEIVE the same unto the said C. D., his executors, administrators, and assigns, but subject to the same right or equity of redemption as for the time being shall be subsisting in the said messuages hereinbefore appointed: AND THE SAID A. B. doth hereby, for himself, his heirs, executors, and administrators, covenant with the said C. D., his executors, administrators, and assigns, that he the said A. B., his heirs, executors, or administrators, shall and will, during the continuance of this security, pay, or cause to be paid, such annual premiums and duty, and other sum or sums of money, (if any), as shall become payable, in order to keep on foot the said policy of insurance; and that, in default thereof, it shall be lawful for the said C. D., his executors, administrators, or assigns, at any time or times, to pay any annual premium or premiums and duty, or other sum or sums of money, for keeping the said policy of insurance on foot, or otherwise for keeping the said messuages

before the said
day of
any ways, means, or pro-
ceedings for obtaining the possession or the receipt of the
rents, issues, and profits of the said hereditaments and pre-
mises, or any part thereof."

Perhaps a clause similar to the foregoing ought to be inserted in regard to
the observance of the covenants.

and buildings insured against loss or damage by fire, in any
sum or sums of money not exceeding the sum of £
and that he the said A. B. shall and will, from time to
time, on demand, pay unto the said C. D., his executors,
administrators, or assigns, such sum or sums of money as
he or they shall pay or advance for any of the purposes
aforesaid, with interest for the same after the rate aforesaid;
and that in the meantime the same with interest as afore-
said shall be and remain charged upon the said heredit-
aments hereinbefore appointed, and the same shall not be
redeemable until full payment thereof respectively, as well
as of the said sum of £- and the interest thereon. IN
WITNESS &c. (d).

(d) If the mortgaged property, or a substantial part of it, consist of buildings, a provision for insurance against fire is an essential part of the security. If there be an existing policy, it may be assigned, and a notice of the change of interest given to the insurance office; but if it be necessary to effect an insurance for the purpose of the mortgage, it will be more convenient to make the insurance in the name of the mortgagee. In either case the policy and the receipts for the premiums should be given up to the mortgagee. See the provisions made for these matters in the more perfect covenants given in a subsequent Precedent.

MORTGAGE

FOR A TIME

CERTAIN.

It is to be remembered that a policy of insurance against loss by fire is Law relating to not assignable without the consent of the insurance office. (Saddlers' insurance against fire. Company v. Badcock, 2 Atk. 557; Lynch v. Dalzell, 4 Bro. P. C. 431). And therefore, whenever such a policy is assigned, the consent of the office (which is usually signified by indorsement on the policy) must be obtained. By the regulations of the Hand in Hand Insurance office, the benefit of a policy survives to the executors and administrators of the insured, and therefore, if the house be burnt subsequent to his death, his heir takes no benefit from the policy. (Mildmay v. Folgham, 3 Ves. 471). But this case was decided on the peculiar laws of the office in question, and it is doubtful whether as a general rule the heir would not be entitled to the benefit of the policy. (See Park on Insurance, 662, 7th ed.)

In a more recent case, where A. and B. were successive tenants for life of some houses, with remainder to A. in fee, A. having insured the houses, and they having been burnt down, he received the money and invested it in his own name in the funds, and did not rebuild the houses. A. then made his will and devised the estate to C., and his personalty to B., and B. in his will noticed the fund as forming part of the real estate of A., and did not specifically dispose of it. It was held that the insurance money, which remained unapplied, passed to C. as part of the real estate;

OF A MILL AND MACHI

NERY BY

PARTNERS TO

A JOINT STOCK

BANK.

Parties.

Reputed own.

ership of personal chattels,

LVI.

MORTGAGE by Co-PARTNERS of a COTTON-
MILL and MACHINERY (a) to a JOINT STOCK
BANK for securing an AccoUNT current.

THIS INDENTURE, made &c. BETWEEN A. B. and
C. D., of &c., cotton-spinners and co-partners [mortgagors],

but that he had no claim on a part of it which had been applied in rebuilding another house which had also been burnt down on the same estate. (Norris v. Harrison, 2 Madd. 268). Where a partner left certain chattels in the order and disposition of the partnership, but insured them in his own name, and they were burnt, and afterwards a commission of bankruptcy issued against the partnership, it was held that the insurance money did not pass to the assignees. (Ex parte Smith, 3 Madd. 63; S. C. Buck, 149).

If property which has been insured against loss by fire be burnt under such circumstances as to render the hundred liable to make good the loss, the hundred is not discharged by the fact of the insured having received compensation from the office. (Clark v. The Inhabitants of Blything, 2 B. & C. 254). And the office, having paid the money, may sue the hundred in the name of the insurer. (Mason v. Sainsbury, 2 Marshall on Insurance, p. 796).

(a) Personal property passes by delivery of possession, and it is possession which determines the apparent ownership. If, therefore, a purchaser or mortgagee of personal chattels do not divest the vendor or mortgagor of possession, but permits him to remain the ostensible owner, such purchaser or mortgagee cannot make a title as against a subsequent purchaser or mortgagee who takes possession, or against a creditor who seizes the chattels under an execution, or against the assignees in bankruptcy of the vendor or mortgagor. (Twyne's Case, 3 Rep. 80; Ryall v. Rowles, 1 Atk. 165; 1 Ves. 348; Lingham v. Biggs, 1 Bos. & Pul. 82; Bryson v. Wylie, Id. 83, n. ; 9 East, 240; Edwards v. Harben, 2 T. R. 587). "For," says Sir Thomas Plumer, "if you, having the right to possession, do not exercise that right, but leave another in actual possession, you enable that person to gain a false and delusive credit, and put it in his