Formerly the court would not appoint a receiver on the application of a mortgagee who had the legal estate, such appointment being unnecessary as the mortgagee by virtue of the legal estate could take possession of the mortgaged property (r).

In Ontario it is now provided, however, by the Judicature Act, R.S.O. 1914, c. 56, s. 17, that a receiver may be appointed by an interlocutory order of the court in all cases in which it appears to the court to be just or convenient that such order should be made, and any such order may be made either unconditionally or upon such terms and conditions as the court shall deem just (s).

(l) McMahon v. North Kent Ironworks Co., [1891] 2 Ch. 148; cf. Edwards v. Standard Rolling Stock Syndicate, [1893] 1 Ch. 574.

(m) Aikins v. Blain, supra.

(n) Underhay v. Read, 1887, 20 Q.B.D. 209 at pp. 218, 219; Berney v. Sewell, 1820, 1 J. & W. 647.

(o) Angel v. Smith, 1804, 9 Ves. 335; Langton v. Langton, 1855, 7 DeG. M. & G. 30; Searle v. Choat, 1884, 25 Ch.D. 723, at p. 727.

(p) Berney v. Sewell, 1820, 1 J. & W. 647.

(q) Steinhoff v. Brown, 1865, 11 Gr. 114.

(r) Berney v. Sewell, 1820, 1 J. & W. 647; Kelsey v. Kelsey, 1874, L.R. 17 Eq. 495. As to the right to possession as between mortgagor and mortgagee, see chapter 22, Action for Possession, Sec. 212.

Under this provision a receiver may now be appointed by the court on the application of a legal mortgagee (t). As a rule the court will not so appoint, especially if the mortgagee is in possession, so as to relieve the mortgagee from the responsibilities of a mortgagee in possession (u), but the fact that the mortgagee is in possession will not necessarily prevent the court from assisting him by the appointment of a receiver if it appears to be just and convenient to make the appointment (v), even though the mortgagee has paid himself all his interest and costs out of rents and profits received (w). A receiver may be appointed if the mortgagor prevents the mortgagee from taking possession (x).

The right to propose a person as receiver belongs generally to the mortgagee applying to have the appointment made. A party to the action will not usually be appointed receiver; if appointed he will not be allowed a salary (y). The solicitor for the mortgagee will not be appointed receiver because it is one of the duties of the mortgagee's solicitor to check the receiver's accounts (z).

(s) Originally enacted by s. 17 (8) of the Ontario Judicature Act, 1881, and in England by s. 25 (8) of the Judicature Act, 1873,

(t) Pease v. Fletcher, 1875, 1 Ch.D. 273; In re Pope, 1886, 17 Q.B.D. 743, at p. 749, 10 R.C. 592, at p. 598.

(u) In re Prytherch, Prytherch v. Williams, 1889, 42 Ch.D. 590. See chapter 28, Mortgagee in Possession, Sec. 301.

(v) Tillet v. Nixon, 1883, 25 Ch.D. 238; County of Gloucester Bank v. Rudry Merthyr, etc., Colliery Co., [18951 1 Ch. 629.

(W) Mason v. Westoby, 1886, 32 Ch.D. 206.

(x) Truman & Co. v. Redgrave, 1881, 18 Ch.D. 547.

(y) Sargant v. Read, 1876, 1 Ch.D. 600.

(z) In re Lloyd, Allen v. Lloyd, 1879, 12 Ch.D. 447.

If the mortgagor carries on business on the mortgaged premises, a receiver of the rents and profits of the property appointed at the instance of the mortgagee will not be also appointed manager of the business unless the business or its goodwill is expressly or impliedly included in the mortgage security (a),