carried by appeal before the House of Lords, and after a labored examination of the Registrar's office, that court came to the concluston, that Gordon vs. Graham was not correctly reported, and that if it was, it could not be maintained as sound law, and was, therefore, formally overruled by the court of final jurisdiction. Lord CRANWORTH dissenting.

12. It is not important now to inquire into the grounds of this last decision, since it conforms substantially, to what had long been the American rule upon the subject. It goes mainly upon the ground, that where there is no binding contract, in regard to such future advances on the part of the mortgagee, the whole matter rests merely in negotiation, and continues optional with both parties, until the advances are actually made. The security as to such future advances, consequently has no binding force, and no vitality or validity, until the advances are made. It is very obvious, therefore, that as the debtor has the election whether he will accept any further advances, there can be no obligation on his part not to negotiate with other parties for such advances upon the further credit of a mortgage upon the same estate. He must do this if the first mortgagee declines to make them, and he may do it, if for any reason he prefers to transfer his account to another house. And if the mortgagor has this election, there can be no wrong in a party, to whom he applies to make such further advances, upon the credit of the mortgagor's remaining interest in the estate doing so. The application to the second mortgagee is a virtual election on the part of the mortgagor, to nullify the optional portion of the first mortgage, as to further advances.

13. But after this is done, and the estate, in good faith, pledged to a subsequent mortgagee for such further advances, and all this is made known to the first mortgagee, it can be nothing short of bad faith, for him then to allow a further credit to the mortgagor, if he does it with the purpose of compelling payment out of the estate, at the expense of the second mortgagee: M'Daniels vs. Colvin, 16 Vert. R. 300.

14. The most important remaining inquiry is in regard to the extent, and kind of notice of the subsequent mortgage, which it is

requisite the first mortgagee should have, in order to postpone his further advances to such intervening security. As a general rule, 1. it has been considered that the registry of the second mortgage, will only be notice of its contents to future purchasers and incumbrancers, and not to prior incumbrancers, thus operating forward and not backward. This is highly reasonable, if we apply it only to such past transactions as are not likely to direct the attention of the party to the registry. And that is the case where the future advances are contemplated to be made, from day to day, and hour to hour, and involve a continuous dealing, as with bankers and brokers, where the balance is constantly changing. The requirement that one should, under such circumstances, constantly watch the registry, or act at his peril, would tend to render such continuing security of little avail. But where the clause for securing future advances is inserted, as a mere safeguard, and with no present expectation of the parties that it will be acted upon, and the parties do subsequently negotiate a further distinct loan, there seems no hardship, in requiring the first mortgagee to examine the registry, before he make such further loan. Accordingly, we find the law established in some of the states, that the registry is full notice to the first mortgagee, not to make further advances under his mortgage: Spader vs. Lawler, 17 Ohio R. 371; Ter Hoven vs. Kerns, 2 Barr 96; Parmentier vs. Gillespie, 9 Barr 86.

15. But the general view of the American courts, and the uni form declaration of the English courts, as far as we know, is, that nothing short of notice in fact will have this effect. It is expressed under various forms of language, but the result of the whole is, that if the first mortgagee have knowledge of the existence of a second mortgage upon the estate, he cannot give further credit upon his prior mortgage, provided it is entirely optional with him, whether to make further advances or not. This has been often declared by judges and text writers, and may now be regarded as settled law, notwithstanding an occasional case seems to require something more. In McDaniels vs. Colvin, 16 Vt. R. 300, it seems to be required that the second mortgagee should give express

and formal notice of his incumbrance, by way of admonition to the first mortgagee not to deal further upon the credit of his security. But this subject was a good deal examined, and considered by that court, when the late case of Hubbard's Estate vs. Converse, supra, was before them, and although the court decided that case upon the ground that the successive discounts were mere renewals of the original gross sum of $25,000 named in the mortgage as a standing security, and although it is intimated in the rescript filed by the court, at the time of entering up judgment, that a majority of the court were not prepared to depart from the rule laid down in McDaniels vs. Colvin, as the law of that state, it having been so long received and acted upon as the settled law of the state, it is nevertheless clearly shown in the same rescript, by the judge delivering the opinion of the court, that all which the law requires in such cases is, that the first mortgagee, before he gives the credit, should have had a distinct knowledge of the existence of the intervening incumbrance; and that it is not material how this knowledge is acquired, provided it be in such a way as to gain confidence with the first mortgagee, as being authentic.

16. It scarcely seems necessary to occupy much space upon this point. With the exception of the case of McDaniels vs. Colvin, supra, the current of authority seems to be all one way. Mr. Chief Justice MARSHALL, in Shirras vs. Craig, supra, uses the language actual notice brought home to the party." In Truscott vs. King, 6 Barb. S. C. 346, the form of language is, "actual notice of the second mortgage." In Frye vs. The Bank of Illinois, 11 Illinois R. 381, the notice to the first mortgagee was from the accident of his being the public officer, or his assistant, who made the registry of the second mortgage. In Craig vs. Tappin, 2 Sanf. Ch. R. 78, the first mortgagee was apprised of the mortgagor's intention soon to execute a mortgage to the second mortgagee, and the court held that sufficient notice, as to all advances made after the actual execution of the second mortgage. In Stuyvesant vs. Hall, 2 Barb. Ch. R. 159, the requisite notice to affect one with fraud in equity is thus defined: "His conscience is not affected unless he is informed of the existence of the facts

upon which the equitable right depended, or had sufficient notice to put him on inquiry." And in Montefiore vs. Browne, 7 House Lds. Cas. 269, the matter is thus defined: "One is affected with notice of a fact which he might have learned on such inquiry as all prudent men would naturally make in a question where they were personally interested." And in New York, where equitable rights take precedence from their date, if notified before action brought, Chancellor KENT uses this language, in regard to the present question, Brinkerhoff vs. Marvin, 5 Johns. Ch. R. 326, 327: "Where a subsequent judgment or mortgage intervened, further advances, after that period, could not be covered." The italics are in the original, and would seem to indicate an opinion that such an equity must operate from its date. The learned Chancellor uses similar language in 4 Comm. 175, 176; James vs. Johnson, 6 Johns. Ch. R. 417, 432. We prefer to say, that in all cases, and this is no exception, third parties are bound to respect an equity from the moment they have such knowledge of its existence as to create belief. See Sir JOHN ROMILLY'S opinion in Rolt vs. Hopkinson, 25 Beavan 461. The text writers have adopted similar forms of expression. The case of McDaniels vs. Colvin stands quite alone in its requirements in regard to notice, and was influenced, no doubt, mainly, at the time the decision was made, by a consideration of the rule laid down in Gordon vs. Graham, and the extreme caution of Chief Justice WILLIAMS, in defining the requisite notice, unquestionably resulted from his desire to lay down an unexceptionable qualification of that case. But since that case has been abandoned in England, there seems no necessity, and no propriety, in following those extreme safeguards laid down to bridge that case over.

We trust we have been able to make ourselves understood ir. the foregoing exposition of the principles and authorities connected with the registry of mortgages and the true limit of securities for future advances. And if we have been able to accomplish that, it is all which we purposed in the outset.

I. F. R.

RECENT AMERICAN DECISIONS.

Supreme Judicial Court of Maine-County of York.

NATHANIEL LEACH, ADM'R, IN ERROR, vs. MARY MARSH.

A judgment recovered on default, against a person admitted to have been non compos mentis at the time of the proceedings in the case, will be reversed on a writ of error brought by his administrator after his decease.

Actions brought against persons non compos for necessaries, it seems, constitute au exception; but, in such case, the defendant in error should plead the fact in bar of the suit.

The case of a judgment on default, against a person admitted to have been non compos, is to be distinguished from such cases as King vs. Robinson, 33 Maine 114, where the fact of unsoundness of mind was not admitted, and the defendant appeared by attorney, and judgment was rendered upon a trial and verdict. It would be manifestly unjust to render judgment against a party or his estate, when he had no capacity to take care of his own affairs or to employ another to do it.

Writ of error. On report by APPLETON, J.

Mary Marsh brought an action against Asa Leach, December 6, 1854; the writ was returned as served by leaving a summons "at the last and usual place of abode" of the defendant, and real estate attached; and, at January term, 1855, the defendant not appearing, a default was entered, and judgment was given for the plaintiff for $344.26, and costs of suit. Execution was issued, and extended by levy on the real estate of Leach.

Asa Leach having deceased, the plaintiff in error, appointed administrator on the estate of the deceased, sued out this writ of error against the said Mary Marsh, September 14, 1857, praying that the former judgment in her favor may be reversed, and assigning the following errors :

1, 2 and 3. Want of notice and insufficient service on the deceased. 4. "The said Asa Leach, at the time that the officer's return of service of said writ upon said Asa Leach purports to have been made, and for a long time before that date, and from that time until his decease, after the rendition of said judgment was non compos mentis, and incapable of taking care of himself and