proper person to perform this duty, is no ground for passing him Brooks v. Davis, xvii. 148.

over.

2. Whether one who is to be tried by a court-martial can waive the objection, that a member thereof has not been legally detailed, Ibid. qu.

3. Where the commander of a volunteer company of militia fails to comply with St. 1840, c. 92, requiring him annually to certify to the town or city treasurer a list of all the members of his company, who during the preceding year have performed all the duties imposed by that statute; this is an offence of which a courtmartial has jurisdiction. Washburn v. Phillips, 2 Met. 296.

4. In an action for a fine imposed by a court-martial, the original record of the court, whether properly taken from the adjutantgeneral's office or not, is, if actually produced, at least as good evidence as a certified copy. - Brooks v. Daniels, xxii. 498.

5. Whether a court-martial, which has no jury, can constitutionally impose a pecuniary penalty, qu.— Ibid.

6. If a member of such court has been improperly detailed for the office, whether the party can waive this objection, qu. Ibid.

7. After the judge-advocate and the members of a court-martial had been sworn, the party submitted to them a paper as follows"not objecting to the members personally, nevertheless he does object to the detailing thereof, and challenges as follows that it doth not appear otherwise than by the return of Brig. Gen. J. D. to the order of Maj. Gen. A. S. G., that Lieut. Col. A. R., a member of this court, hath been duly detailed to that place, whereas the prosecutor ought to show affirmatively, that said detail is agreeable to the brigade roster; and the respondent further shows, that said detail and the orders therefor, and the execution thereof, are in other respects illegal and void." Held, this was a sufficient challenge, or, if too general, that it should have been objected to on that ground before the court-martial.— Ibid.

Mortgage.

A. What constitutes a mortgage; and the general principles relating thereto.

B. Respective rights of mortgagor and mortgagee. C. Assignment, payment, discharge or extinguishment of a mortgage or a mortgage debt.

D. Redemption of a mortgage; by whom, and on what

terms.

E. Actions between mortgagee and mortgagor.

F. Entry under a mortgage, and foreclosure.

G. Sale of equities of redemption on execution, and the effect thereof.

H. What avoids a mortgage

fraudulent mortgages.

I. Mortgages of personal property.

A. What constitutes a mortgage; and the general principles relating thereto.

1. A lease for years by indenture, in which the lessor acknowledges the receipt in advance of a certain sum, in full for rent during the term, and the lessee covenants to reconvey on repayment thereof with interest, is a mortgage, and subject to the same principles with a mortgage of a freehold. Nugent v. Riley, 1 Met.

117.

2. So also, though executed only by the lessor, if the lessee accepts and takes possession under it. - Ibid.

3. In such case, though there is, technically, no covenant by the lessee, upon which an action will lie, yet, if he underlets and receives rent during the term, to the full amount of his payment, with interest; his estate for years thereby ceases, and the lessor is restored to his old title. If he receives more than that amount, the surplus is received by him, not as mortgagee, but for the lessor, who may recover it in an action for money had and received.

Ibid.

4. A. having purchased land of B., and C. being a surety in a note signed by B., B., according to agreement, conveyed the land to C., and C. gave A. a bond, conditioned to convey the land to him,

upon being indemnified against such note. Held, as the Supreme Court had not full Chancery powers in relation to mortgages, the bond and deed did not make C. a mere mortgagee, but he took an absolute title. Fowler v. Rice, xvii. 100.

5. A., being in possession, mortgaged the land to D., and afterwards assigned the bond to E. Held, D. could not enforce specific performance of the bond against C. - Ibid.

6. Conveyance by A. to B., with an indenture of even date between them, by which B. demised, granted and to farm let the land to A., his heirs &c. to have and to hold for life; and which recited that the deed from A. to B. was given for the purpose of his maintaining A. for life, and that for this purpose the lease was given by B. A. having survived B., held, the indenture was a mortgage; and after A's death the widow of B. was entitled to dower, as against one claiming under B. - Lanfair v. Lanfair, xviii. 299.

7. Conveyance, in consideration of a certain sum, with a written, but unsealed agreement by the grantee to reconvey, upon repayment of that sum within a certain time. Held, an equitable mortgage, not a sale, with a conditional right to repurchase. — Eaton v. Green, xxii. 526.

8. A., the plaintiff, conveyed certain land to B., the defendant, taking back from him a bond of the same date, which recited as the consideration of the deed the indorsing of A.'s note by B., and an indemnity for such indorsement; and was to be void, in case B., his heirs and assigns, upon A.'s paying the note on or before a certain day, should, on being requested, reconvey the land to A., his heirs or assigns. After paying the note and requesting a reconveyance, A. assigns to C. all his interest in the land, and then brings this action upon the bond. Held, the transaction seemed to constitute a mortgage, and, if so, the action did not lie, as the bond, being a mere defeasance, passed by the assignment to C.- Hogins v. Arnold, xv. 259.

9. Where a deed is given, accompanied by a defeasance, which is not recorded; a subsequent surrender and cancelling of such defeasance, by agreement, and for the purpose of giving the grantee an absolute title, without unfairness between the parties or as to strangers, and before any rights of creditors have intervened; will vest the absolute estate in the grantee. Tull v. Skinner, xvii.

213.

10. Where a defeasance was thus cancelled, and the grantee agreed by another deed to convey on certain terms to the grantor; held, as this deed was subsequent to the original one, not part of the same transaction, nor understood or intended as a defeasance, it could not operate either to continue the original right of redemption, or to constitute with the first deed a new mortgage. Ibid.

11. Mortgage by A. to B., his father, conditioned that A., his heirs and assigns, "shall provide a comfortable room or apartment for his father and mother, together with suitable meat, drink, lodging and apparel, with all things necessary for their support and comfort, both in sickness and in health, suited to their age and condition, and with a good horse and what shall be necessary for their comfort and convenience, both to meeting and to visiting their friends, during their natural lives." When the mortgage was made, the father and mother and all their children lived on the mortgaged farm. B. died, then A., and the equity of redemption was sold to C., the plaintiff. D., the administrator of B., afterwards entered for failure to support the mother. Upon a bill in equity, to compel D. to acknowledge satisfaction of the mortgage; held, the mother was entitled to her whole support, without performing any labor, and without living on the farm; that the mortgage did not cover the expense of a journey made by her to visit a son, who lived forty miles from the farm; that, having for some time after A.'s death been supported by his son, without any request by his administrators and after they had offered to support her, the defendant could not charge her support upon the land; and that the defendant, having allowed the widow of A. to occupy a part of the land after he had entered, was justly held to account for the profits of the whole farm, after the lapse of a reasonable time for expelling her by legal process. Thayer v. Richards, xix.

399.

12. A building was erected by A. on land of two tenants in common, who verbally agreed that it should remain there while used for a blacksmith's shop, and no longer. A. sold the building to B., who did not thus use it, but removed it a few feet and repaired it, by verbal permission from the owners of the land, with whom he agreed, that within one year he would buy the land on which it stood, or afterwards remove it at their request. B. did not buy the land, nor was he requested to remove the building. The year having expired, one of the co-tenants of the land sold the building to C., taking back a mortgage. C. afterwards leased the building to D. for ten years from a certain future day, with an agreement, which he fulfilled, to enlarge the building and fit it for certain manufacturing purposes, before the day when the lessee was to take possession, and to furnish water, during the ten years, sufficient to carry the machinery. Held, by the sale of the building to C., it became attached to the land; that C. leased it as real estate; that the lease carried the land under it; and that the lessee was entitled to redeem the mortgage from C. to his grantor, though such mortgage had been assigned, and C. had released the equity of redemption to the assignee. Bacon v. Bowdoin, 2 Met. 591.

13. A note was given to E. H., payable on demand, with in

terest.

Some months afterwards, the promiser made a mortgage to E. H. 3d, conditioned for payment of a note of the same date, for the same sum, and payable on demand with interest. In an action on the mortgage, held, parol evidence was admissible to show, that E. H. and E. H. 3d were partners, doing business in the name of the former, and that the note to E. H. was for a partnership debt, and was the one secured by the mortgage.- Hall v. Tufts, xviii. 455.

14. A purchaser of land agreed with the vendor, that he would not sell it without first offering it to the latter. Held, this contract did not preclude him from mortgaging the land without first making such offer. —Lovering v. Fogg, xviii. 540.

15. The purchaser conveyed the land to a creditor having notice of the above contract, with a verbal promise from him to reconvey on payment of the debt, and he afterwards gave a bond to the same effect. Held, the bond had relation to the deed, and as between the parties constituted it a mortgage, and that the original vendor could not maintain a bill in equity against the mortgagor and mortgagee, for specific performance of the contract to convey. Ibid.

16. Mortgage from a son to his mother, who lived in his house, as was alleged, by virtue of a provision in the will of his father, with condition to "find her fire-wood for one fire, to be drawn and cut at the door fit for use." The house was afterwards burned. Held, the condition was not hereby discharged, but the son was bound to furnish wood to his mother at her new home, if within a reasonable distance, taking into view the distance to which the wood had usually been carried for family use. Fiske v. Fiske, xx. 499.

17. After the burning of the house, the mother went to live with another son, and demanded wood of the mortgagor, to which he replied that he was bound to furnish it only on the farm. She then demanded of him to furnish it at the old place, and he replied, that he would see about it, but no wood was furnished. Held, this was a sufficient demand and refusal on the one side and the other. Ibid.

18. The mother having designated a place, within a reasonable and convenient distance, for delivering the wood; held, the fact that she at times lived at a greater distance did not affect the son's liability. Ibid.

19. Further condition in the same mortgage, to keep a cow for the mother. The cow being improperly kept, the mother was obliged to sell her at a low price. She did not purchase another and tender it to the son to be kept, nor did he offer to keep anoth