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APPOINTMENT pay to him : AND IT IS HEREBY agreed and declared
between and by the said parties to these presents, that all Declaration of trusts of the
and every the rents and profits which shall be received by rents and pro- the said E. F. shall be held by him upon and for the trusts,
intents, and purposes hereinafter mentioned; (that is to
say), upon trust that he the said E. F. shall and do by -to pay out and out of the same from time to time, IN THE FIRST goings.
PLACE, pay all taxes, rates, assessments, and impositions whatsoever now or hereafter to be taxed, charged, assessed, or imposed upon or in respect of the said premises, and
which the respective tenants or occupiers thereof shall not -and retain a be liable to pay (d); AND IN THE NEXT PLACE deduct and per-centage as salary.
retain for his own use so much and such sums of money, not exceeding after the rate of £5 for every £100, as he shall reasonably deserve as a compensation and satisfaction for his cares, pains, troubles, and expenses in recovering
and paying the said rents and profits in manner and for the -and pay in- purposes herein mentioned: AND, IN THE NEXT PLACE, pay
to the said C. D., his executors, administrators, and assigns, by two equal half-yearly payments, on the day of - , and the day of --- in every year, interest for
the said sum of £— , or for so much thereof as for the --and pay sur- time being shall remain unpaid : AND, IN THE LAST PLACE,
pay the clear residue and surplus which shall remain of gagor.
the said rents and profits, after answering the several
purposes aforesaid unto the said A. B., his executors, Covenant by the administrators, and assigns; AND THE SAID E. F. doth discharge of his
is hereby for himself, his heirs, executors, and administrators,
terest on mortgage.
plus to mort.
Power for the receiver to repair and insure.
(d) It may frequently be expedient to provide, that the receiver shall pay such sums as shall be necessary for keeping the premises properly repaired and adequately insured against loss by fire. As to the power of a receiver appointed by the Court of Chancery, to expend money in repairs, see Attorney-General v. Vigors, 11 Ves. 563; Waters v. Taylor, 15 Ves, 26.
receive the same, and shall and will from time to time and APPOINTMENT at all times truly and punctually pay or cause to be paid, in manner and to and for the ends, intents, and purposes aforesaid, all such monies as shall from time to time be collected or received by him the said E. F, by virtue of or under the aforesaid powers or authorities: AND THE SAID A.B. Covenants by doth hereby for himself, his heirs, executors, administra- mor tors, and assigns, covenant with the said C. D., his executors, administrators, and assigns, in manner following; (that is to say), that he the said A. B. shall not nor will, -not to obwithout the consent of the said E. F., his executors, ad- struc ministrators, or assigns, first had and obtained in writing, under his or their hand or hands, revoke(e) the powers or authorities hereby given to the said E. F., or any of them, or do or suffer to be done any act, matter, or thing, whereby the said powers or authorities hereby given, or any of them, may or shall become void or of no effect, or hinder or obstruct him the said E. F., or any future receiver to be appointed as hereinafter is mentioned, in recovering, collecting, or receiving all or any of the rents and profits of the said premises upon and for the trusts, intents, and purposes aforesaid, during such time as the said sum of £- , or any part thereof, shall remain on the security of the said premises, or any of them: AND FURTHER, THAT, in —and to recase the said E. F. shall die, or by any disability be dis- move him and
appoint a new qualified or rendered incapable to collect or receive the one if required. said rents and profits, or shall refuse or neglect to proceed therein in manner aforesaid, or shall otherwise misbehave himself in the trusts hereby in him reposed, whilst the said sum of £- , or any interest for the same, or any part thereof respectively shall remain and continue on the aforesaid security, then and in any of the said cases, except the death of the said E. F., he the said A. B., his heirs or assigns, shall and will join with the said C. D., his executors, administrators, or assigns, in removing the said
(e) A power of attorney executed for a valuable consideration cannot Power of attorbe revoked without the consent of the person for whose benefit it was ney for valuable granted. (Odes v. Woodward, 2 Ld. Raym. 849; Walsh v. Whitcomb,
como, not revocable. 2 Esp. 565 ; Bromley v. Holland, 7 Ves. 28; and see supra, p. 384, n. (S)). But the covenant in the text is usually inserted.
APPOINTMENT E. F. from the said employment, and shall and will in any
of the said cases duly constitute, appoint, and authorize such other fit person or persons in the place or stead of the said E. F., as the said C. D., his executors, administrators, and assigns shall from time to time nominate, to collect, receive, and pay the said rents and profits of the said premises upon and for the trusts, intents, and purposes hereinafter mentioned, and so from time to time when and so often as the like case shall happen, until the said sum of
£—-, and all interest for the same, shall be paid to the --and that on said C. D. ; And that in case the said A. B., his heirs or neglect by
assigns, shall refuse or neglect so to do for the space of mortgagor, mortgagee may three calendar months next after the death, incapability, appoint a new receiver. or misbehaviour of him the said E. F., or any other
receiver so to be constituted as aforesaid, then and in such case, and so from time to time as often as the like case shall happen, it shall be lawful for the said C. D., his executors, administrators, and assigns, if they shall think fit, without the consent or concurrence of the said A. B., his heirs or assigns, to constitute or appoint some fit person to collect, receive, and pay the said rents and profits upon the trusts and for the intents and purposes aforesaid, with such reasonable salary for his care, pains, trouble, and expenses as
the said C. D. shall think fit, not exceeding £5 for every Mortgagee not £100 to be received: ProvideD ALWAYS, and it is hereby to be liable for acts of receiver. agreed and declared, that the said C. D., his executors,
administrators, and assigns, shall not in anywise be charged with, or answerable for, any loss, misapplication, or nonapplication of the rents and profits of the said premises, or any part thereof, by reason of any default, neglect, or breach of trust of or in the said E. F., or any future collector or receiver to be appointed as aforesaid, but that such loss, misapplication, or non-application, and every
receiver's salary, shall be wholly borne and paid by the Receiver not said A.B., his heirs, executors, or administrators (5): PROto act till after default in pay
VIDED ALWAYS, and it is hereby lastly agreed and declared ment of in
between and by the parties to these presents, that the said
Mortgagee not (5) If this clause were not contained in the deed, there might be to be liable for some doubt whether the mortgagee would not be liable for the receiver's
E. F. or other the receiver or receivers so to be appointed as APPOINTMENT hereinbefore is mentioned, shall not act or assist in the execution of the trusts and powers hereinbefore contained, unless and until some half-yearly payment of interest on the said sum of £- , or some part thereof, shall be in arrear and unpaid for the space of one calendar month (g). In WITNESS &c.
THE SCHEDULE referred to in the above-written Indenture.
DEED of FURTHER CHARGE.
THIS INDENTURE, made &c., Between the within. Parties. named (a) A. B., [mortgagor), of the one part, and the within
defalcation or misapplication. Thus, where a trustee for the benefit of receiver's de
faults. creditors became bankrupt, having retained a sum of money belonging to the trust for three years unapplied, it was held, that the creditors and not the debtor should bear the loss. (Hutchinson v. Lord Massarene, 2 Ball & Beatt. 49).
Sometimes it is provided, that the receiver shall not be liable for Liability of reinvoluntary losses; (see the form, supra, p. 617); but it is considered, that,
617): but it is considered that ceiver for invo
luntary losses. even in the absence of stipulation, a receiver will not be liable for losses which may occur in the proper discharge of his duty. (Knight v. Lord Plymouth, 3 Atk. 480; S. C. 1 Dick. 120). Of course, however, he will be liable for losses which may occur by means of his own conduct. (Wren v. Kirton, 11 Ves. 377; Salway v. Salway, 2 Russ. & My. 215. See, too, the cases of Macdonnell v. Harding, 7 Sim. 178; Clough v. Dixon, 8 Sim. 594).
(g) This proviso will of course be omitted if it be intended that the receiver shall forthwith enter into the possession of the rents and profits. But the usual practice is to postpone his entering on his office till default has been made in payment of interest. (See supra, n. (a)).
(a) The precedent in the text is that of a draft intended to be indorsed Manner of preon the mortgage deed, and, if circumstances will permit, deeds of further paring further charge should always be so indorsed, in order to avoid the necessity of
inf charges. reciting the mortgage-deed. It sometimes, however, happens, that from the situation of the mortgagor's abode, to which the deed must be sent
FURTHER named C. D. and E. F., [mortgagees], of the other part:
- WHEREAS the within-mentioned sum of £2,000 remains Recital of state of original
due and owing to the said C. D. and E.F. by the said A. B. mortgage. upon the security of the within-written indenture, but all
interest for the same has been paid up to the day of -of agreement - past; AND WHEREAS the said C. D. and E. F. have for further
agreed, at the request of the said A. B., to advance and lend him the further sum of £500 out of monies belonging to them upon a joint account, on having the repayment of the said sum of £500, with interest for the same after the rate hereinafter mentioned, secured in manner herein
after mentioned. NOW THIS INDENTURE WITCovenant for NESSETH, that, in pursuance of the said agreement, and payment of the fresh advance. in consideration of the sum of £500 at or immediately &c.,
the receipt &c., (supra, p. 465), He the said A. B. doth
for execution, or from other circumstances, it is not convenient to indorse the further charge on the original mortgage. In that case the deed of further charge should commence by reciting the mortgage in the usual way, (see infra, p. 644), setting out the parcels in the recital; and the subsequent parts of the instrument must refer to the recited deed, instead of to the within-written deed; “within mentioned" will become “ said ; ” and the parties will be described in the usual manner. The draft will not in other respects differ from the indorsed deed, of which the precedent is given.