confession, as having been paid, is conclusive between the parties. Dwight
vs. St. John, 59.
3. The New York act in respect to authentication of foreign, relates to pro-
vincial as well as imperial governments. Lazier vs. Westcott, 501.
4. How an exemplification of such judgment may be proved and received
in evidence. Id.
1. Jurisdiction of a cause commences on the day and hour fixed in the
summons for its return. Sagendorf vs. Shult, 504.
2. When any act is deferred beyond the time limited in the Justice's Act,
by the consent of the parties, it is no error that the act is done after the time
specified in the act, if done within the agreed time. Barnes vs. Badger, 503.
LANDLORD AND TENANT.
1. Construction of lease.
2. Lessee of upper story is discharged from payment of rent by destruction
of building by fire. Graves vs. Berdan, 700.
3. Contra if he has an interest in the soil. Id.
4. Clause that landlord shall pay value of buildings at end of term does not
give tenant a right to hold over until paid. Speers vs. Flack, 633.
5. Lease from the 1st July" begins on 2d.
6. If the owner of a tenement has obtained peaceable possession of a part
of it, upon the expiration of his tenant's estate, he may use force to take pos-
session of the residue. Mugford and Wife vs. Richardson, 122.
LAW REFORM AND CODIFICATION, 74.
LAW REFORMS AND LAW REFORMERS, 513.
LEGISLATURE. See CONSTITUTIONAL LAW, V.; COURTS, 1.
See CONSTITUTIONAL LAW, 7, 10.
2. To sell liquors. See CONSTITUTIONAL LAW, 23.
See ADMIRALTY, 1, 2; HUSBAND AND WIFE, 33; MECHANICS' LIEN.
1. May exist against a light-boat building under contract for the United
States. Briggs vs. A Light-Boat, 566.
2. Light-boat is a vessel within the statute.
3. Fraudulent conveyance of land does not disturb a lien, and it is there-
fore not payable out of proceeds from a sale under subsequent judgment.
Hoffman's Appeal, 309.
LIMITATION. See AMENDMENT, 2; ASSIGNMENT FOR BENEFIT OF CREDITORS, 12;
ATTORNEY, 1; FENCE, 3; HUSBAND AND WIFE, 19; INSURANCE, 1, 2, 20;
MORTGAGE, 18; WATERCOURSE, 4-7.
1. The statute affects the remedy only, and belongs to the lex fori. Paine
vs. Drew, 381.
2. Therefore an action may be maintained in one state on a contract which
would be barred in the state where it was made. Id.
3. An action may be barred by a statute passed after the cause of action
accrued, if a reasonable portion of the time of limitation remain after the
enactment of the statute. Howell vs. Howell, 378.
4. The statutory exception against parties absent from the state applies to
those who never resided in the state. Paine vs. Drew, 381.
5. The statute begins to run against a note, payable in such portions, and
at such times as the directors of a company may require, from the time it is
given. Colgate vs. Buckingham, 60.
6. A verbal promise to pay a note has the same effect as a new note. Sen-
nott vs. Horner, 313.
7. Where the defendant has filed his account as a set-off, the plaintiff may
plead the statute to it, but only so much will be barred as had accrued more
than six years prior to the date of plaintiff's writ. Rollins vs. Horn, 382.
8. Maintenance of fence in a highway for forty years gives a right to con-
tinue it there as against the public. Cutter vs. Cambridge, 316.
LIS PENDENS. See ACTION, 2, 3.
The plea of lis pendens in another state is no defence. Smith vs. Lathrop, 107.
LUNATIC. See DEED, 7; HUSBAND AND WIFE, 15; MENTAL UNSOUNDNESS;
SENILE DEMENTIA.
Judgment in favor of plaintiff sufficient but not conclusive evidence of
probable cause, though reversed on second trial. Palmer vs. Avery, 637.
MANDAMUS. See CONSTITUTIONAL LAW, 24.
1. Is not a writ of right, but is discretionary with the court.
ex rel. Keyes vs. The Auditor of Public Accounts of Illinois, 332.
2. The court will not entertain jurisdiction where substantial interests are
not involved. Id.
3. A demurrer to a return to an alternative writ of mandamus, setting up
facts, some of which are provable by the legislative journals only, and some
by parol evidence, admits not only the facts resting on record evidence, but
all facts necessarily existing outside of, and never appearing upon the jour-
nals, so far as they would be proper evidence for any purpose.
4. In a case involving public interests, the issue of a peremptory writ will
be stayed on suggestion of collusion. State vs. Avery, 376.
5. Should not issue unless the relator's right is clear to have the things
sought by it done, and unless the party sought to be coerced ought to do it.
People ex rel. Harless vs. The Secretary of State, 314.
6. Confers no new right. Can only compel the performance of an existing
duty. Id.
7. Will not lie to compel a governor of a state to perform an official
duty. Id.
MARSHALLING, IN EQUITY. See MORTGAGE, 3, 15, 16.
MASTER AND SERVANT. See CONTRACT. 14-16; RAILROAD, 7.
1. Neglect of master to use safety-plug in his steam-boiler required by
statute, entitles his servant to recover for injuries resulting from an explo-
sion. Cayzer vs. Taylor, 187.
2. Master is responsible for injuries occasioned by the incompetency of a
fellow-servant, or defect in machinery.
MECHANIC'S LIEN. See LIEN, 1.
1. Is waived by acceptance of note.
2. Under an entire contract, if there is no lien for the whole work and ma-
terials, there is none for any part. Morrison vs. Minot, 64.
MENTAL UNSOUNDNESS AS AFFECTING TESTAMENTARY CAPACITY, 1,
385.
MINES AND MINING RIGHTS. See DAMAGES.
1. A mining right, under the Mexican ordinances, is a title within the Act
of 1851-and the Board of Land Commissioners had jurisdiction of such a
claim. United States vs. Castillero, 52.
2. The ordinances of the King of Spain, made in 1783, prescribe the mode
of acquiring title to mines, and were in force in Mexico at the date of the
conquest of California. Id.
MORTGAGE. See BANKS, 10; CONSTITUTIONAL LAW, 42; CORPORATION, 1; EXE-
CUTION, 2; HUSBAND AND WIFE, 9; INSURANCE, 39; TENDER.
1. Of the making and recording.
1. Defeasance need not be of same date as the deed. MeIntire vs. Shaw,
316.
2. Mortgage recorded after judgments is entitled to priority if judgment-
creditors had actual knowledge of it before the debts were contracted.
Britton's Appeal, 573.
3. Where the mortgagor sells portions of the land at different times, that
which he retains will, in equity, be held primarily liable for the whole debt:
and if not sufficient, the several parcels sold will be liable in the inverse order
of such sales, beginning with the parcel last sold. Brown vs. Simons, 154.
4. Provided, however, that the previous conveyances not registered, are
subject to be postponed to subsequent registered conveyances. Id.
5. Mortgage to secure all existing debts without naming them is not void
for uncertainty. Michigan Ins. Co. vs. Brown, 46.
II. Of the Rights of Parties and of Title.
6. The mortgagee in a mortgage made to secure a negotiable promissory
note for liquors sold in violation of law, may convey a good title thereto by
assigning the same with the note, before its maturity, to one who takes them
for a valuable consideration without notice. Taylor vs. Page, 121.
7. The assignee of a mortgage on land subject to re-entry for non-payment
of rent on a lease in fee, is entitled to tack the rent actually paid to protect
his interest, to the amount of his mortgage, where the mortgagor has assumed
such payment of rent. Robinson vs. Ryan et al, 58.
8. The conveyance of an equity of redemption of land which is subject to a
mortgage containing a power of sale, gives to the grantee the right to the
surplus, upon a sale of the premises under the power. Buttrick vs. Went-
worth et al., 121.
9. Where one having a right of redemption redeems the mortgaged pre-
mises by the payment of money, the transaction will be treated as an assign-
ment of the mortgage. Hinds vs. Ballou, 126.
10. The quit-claim deed of a mortgagee in possession is sufficient to trans-
fer his interest under the mortgage.
Id.
11. The purchaser at a mortgage sale under an attempted statutory fore-
closure, void as against the mortgagor for want of notice, stands as an as-
signee of the mortgage. Robinson vs. Ryan et al., 58.
12. Surrender of defeasance and acceptance of new bond for consideration
partly new, gives grantee a title in fee. Falls vs. Conway Ins. Co, 506.
13. The purchaser who fails to require the production of the bond, is
chargeable with notice of any defect in the assignor's title thereto. Kellogg
vs. Smith, 499.
14. A mortgagee in possession and taking the rents and profits, can acquire
no title against the mortgagor or his assignee, by a purchase of the land at
a sale for the taxes upon it; but he may add the sum paid for such taxes, to
the mortgage-debt as expenses necessarily incurred in protecting the estate.
Brown vs. Simons, 154.
15. The release by the mortgagee of a portion of the land mortgaged with
the knowledge of a prior sale of another portion, will operate as to such prior
purchaser as a discharge pro tanto of the mortgage-debt. Id.
16. The doctrine of subrogation and equitable contribution discussed. Note
to Brown vs. Simons, 154.
III. Remedy on a Mortgage.
17. Equity follows the analogies of the law where an analogous relief is
sought upon a similar claim, but where the relief sought is in its nature of
equitable, not legal cognisance, equity follows its own rules. Michigan Ins.
Co. vs. Brown, 46.
18. Therefore, on a bill for foreclosure and praying a personal decree
against the mortgagor for the balance that should be due if the mortgaged
premises should prove inadequate, the court will decree the foreclosure, but
the personal decree under the statute being in the nature of a legal remedy,
will not be made after such length of time as would have barred an action at
law on the bond. Michigan Ins. Co. vs. Brown, 46.
19. In a suit for a foreclosure brought by a prior mortgagee against the
mortgagor and subsequent mortgagees, where the bill alleges that the peti-
tioner indorsed a note of a certain date and amount for the mortgagor, under
the mortgage, but contains no allegation that the note was a renewal of a
former one: Held, that evidence to prove the note to have been given in re-
newal of a former note was inadmissible. Boswell vs. Goodwin et al., 79.
20. Where a mortgage has been given to indemnify an accommodation in-
dorser of a note, and the note at maturity is not paid, but renewed, with a
renewal of the indorsement, the security applies to the renewal note in the
same manner as to the original one. So long as the renewal note is not paid
the indorser is not indemnitied for his original indorsement. Id.
21. A conditional judgment may be rendered in an action to foreclose a
mortgage of land which does not convey an existing estate of homestead there-
in. Doyle vs. Coburn, 120.
22. Sale under power while suit to foreclose is pending is fraudulent.
Hurd vs. Cone, 632.
23. Bond for appeal in bill to foreclose, does not stay sale.
Hughes, 694.
24. Execution cannot issue on decree for foreclosure for balance due after
sale. Id.
25. This applies to Territorial Court of Nebraska. Id.
IV. Mortgage of Future Acquired Property.
26. A railroad company authorized its president to issue bonds secured by
a mortgage on the road and its franchises. The president executed an
instrument reciting his authority, and proceeding in his name as president to
mortgage the road, &c., but he signed the instrument in his own name sim-
ply. Afterwards, the company issued two sets of bonds, secured by second
and third mortgages in due form. The first bonds not having been paid when
due, the trustees filed a bill to foreclose the mortgage, and thereupon it was
held, that the corporation had a legal competency to pledge its credit for the
procurement of rails, and to secure payment by a mortgage. Miller et al. vs.
The Rutland Railroad Co., 616.
27. The instrument executed by the president not being executed by or in
the name of the corporation, cannot operate as its deed. Id.
28. The transaction in a court of equity is an equitable mortgage, and thus
entitles the holders of what was intended to secure the first mortgage-bonds,
to their full right in equity to the mortgage intended to be given. Id.
29. The trustees under the second and third mortgages were the agents of
the holders of bonds under such mortgages, and actual notice to said trustees
of the equitable first mortgage, was notice to the bondholders, who therefore
took their bonds subject to all the legal consequences of the existence of the
said equitable first mortgage. Id.
30. The corporation had sufficient interest in the subject-matter of the
mortgages upon which said mortgage would lawfully be operative. Id.
31. There is no need of a preliminary decree for the reformation of the
deed, and the court can give immediate effect to the instrument, as if it were
reformed in pursuance of a decree of equity. Id.
32. A mortgage of personal property not in existence, or not owned at the
time by the mortgagor, is valid, where it is sufficiently defined as the product
of, or as incident to something in presenti, so as to be presumed within the
minds of the parties to the mortgage. Morrill et al. vs. Noyes, 18.
33. Subject discussed. Note to Morrill vs. Noyes, 30.
IV. Of Indemnity and to secure Future Advances.
34. Mortgage to secure future advances where the mortgagee has definitely
agreed to make such advances when recorded, is not affected by a subsequent
MORTGAGE.
mortgage of the same property, though the advances may be made after such
record. Boswell vs. Goodwin et al., 79.
35. Where, however, it is optional with the mortgagee to make the advances
or not, and he has actual notice of a later mortgage upon the same property
for an existing debt or liability, such later mortgage will take precedence of
the prior one as to all advances made after notice. ld.
36. Whether the record of the later mortgage would not be sufficient notice
to the prior mortgagee; and whether a mortgage to secure future advances, to
be made or not at the option of the mortgagee, should not stand in all
respects as if it was executed at the time the advances are in fact made:
Quere. Id.
37. It makes no difference that such later mortgage is given to secure
future advances to be made or not at the option of the mortgagee, so long as
the advances under it are actually made before the advances under the prior
mortgage over which they claim precedence. Id.
38. A knowledge of the existence of the later mortgage is enough to affect
the prior mortgagee, as to his future advances, even though he be not notified
of the advances actually made under the later mortgage. Id.
39. Effect of registration. Note to Boswell vs. Goodwin, 91.
40. Instrument held not to be for indemnity merely. Butler vs. La Due,
248.
V. Chattel Mortgage. See SHIpping, 4, 5; Vendor, 11.
41. A mortgage of personal property in and about a hotel, including
"things of every name and nature, situate and being in and about it," will
embrace a sail-boat upon the water near it, and used in connection with it.
Veazie vs. Somerby, 64.
42. Purchase at a sheriff's sale of property subject to a chattel mortgage,
and subsequently of the mortgage, is not necessarily a satisfaction of the
mortgage. Brown vs. Rich, 188.
43. Act of Congress as to recording mortgage of a vessel does not supersede
state laws for same purpose.
Etna Ins. Co. vs. Aldrich, 570.
MUNICIPAL CORPORATION. See CONSTITUTIONAL LAW, 43; CONTRACT, 9;
EQUITY, 4; NEGLIGENCE, 2.
1. Authority to subscribe for stock "as fully as any individual," authorizes
issue of bonds in payment. Seybert vs. Pittsburgh, 629.
2. Such subscriptions are constitutional. Gelpcke vs. Dubuque, 629.
3. Not liable in foreign attachment for bounty voted to volunteer. Brown
vs. Heath, 125.
4. Cannot be made garnishee in attachment. Burnham vs. Fond-du-Lac,
509.
5. Cannot appropriate money to individuals for expenses in procuring its
charter. Frost vs. Belmont, 374.
6. Liability for negligence of its contractors. Note to Painter vs. Pitts-
burgh, 358.
7. A verdict and judgment against a city, in an action for personal injuries
occasioned by a defect in a highway, are conclusive evidence in a subsequent
action by the city against the tenant of the land, who had notice of the pen-
dency of the former suit. Boston vs. Worthington, 186.
8. Proceedings in the
People vs. Yonkers, 124.
construction of public works by commissioners.
9. Election of clerk. Duty of officers to be present at the election.
ball vs. Marshall, 125.
See BILLS, 28, 29; MASTER AND SERVANT, 1, 2; MUNICIPAL
CORPORATION, 7: RAILROAD, II.
1. Where a person employs another, exercising a distinct employment, to
do work by a special contract, for a stipulated sum, and does not interfere
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