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this time this man had been the adviser, the strengthener and the supporter of the criminal class in the jail. Ingenious and monstrous crimes had been committed by him, even while behind the bars of the prison. He was finally released upon bail and was suffered to die in his bed like a decent Christian.

LEGAL EDUCATION AND THE QUALIFICATIONS OF THE
BENCH AND BAR.

The answers to our circular on this head represent, we suppose, the views of the legal profession generally, and leave little to be added by us. We insist that ours is a learned profession and not a trade, that it requires for its service high qualifications of character and learning, and that he who enters it pledges himself to do what he can, not only for the promotion of justice, but for the improvement of the laws. Because it is not a trade but a profession, preparation for it should be with that view. A severe training is es

and due to clients also that this training should be had, or at least much of it, before admission to the bar. There should be, in our opinion, a prescribed term of study, in a law office and in a law school, followed by a very strict examination in the different branches of the law, before any person is invested with the privileges and responsibilities of the profession. The Legislature, the courts, and the bar should all seek in their respective spheres to raise and maintain a high standard of learning and integrity for the profession, to which are confided interests so important to the well-being of the whole community.

Instances of miscarriage of criminal justice are so frequent and have so shocked the sense of law-abiding people as to lead to a general feeling of want of confidence in the administration of criminal law, and of disrespect for those who are concerned in its administration. During the last twenty years this popular indignation has found expression in numerous lynch-sential to useful service, and it is due to the courts ings-executions of accused persons at the hands of mobs-and these lynchings have become so frequent as to indicate the existence of a popular craze upon the subject, and it is asserted that at this time the number of persons accused of crime who are killed by armed mobs exceed in number those who are executed under the sentence of law. The remedy for these great evils lies in the improvement of public opinion so largely represented by juries, in the elevation of the bar, and in the strengtheuing of the bench. But it does seem that much could be done in the way of immediate amelioration if the rules of appellate action in criminal cases were changed so as to require a full report of the evidence, taken by a stenographer employed by the State, to be sent to the appellate court in case of an appeal, and so as to prohibit the appellate judges from reversing any criminal judgment, whenever upon examination of the evidence so reported to them, they shall be of opinion that the jury has rightly decided the essential question of guilt or innocence. It is the monstrous practice of reversing just and righteous decisions, rendered in conformity with the overwhelming weight of evidence, upon grounds which are technical, and which do not touch the substantial merits, that outrages public opinion and leads to the results already stated.

Punishment, certain and swift, should be the fate of all who violate the penal laws. How to compass that, and at the same time give a reasonable appeal, is the problem. But the problem is harder in capital cases, insomuch as the "life is more than raiment" or liberty. In some States, Massachusetts for instance, two or three judges of the Supreme Court are required to sit in trials for offenses punishable with death. It certainly seems reasonable, in the present condition of the laws, that more than one judge should pass upon the legal questions arising upon trials, where a man's life may be the forfeit. Whenever imprisonment only may be the penalty, we see no sufficient reason why the imprisonment should not begin at once upon conviction and sentence, though an appeal be pending, for the presumption of guilt becomes so great when a jury has convicted and a judge has sentenced, that though a chance for reversal upon appeal may still be allowed, the execution of the sentence should not be stayed in the meantime. And where death may be the penalty, although in favor of life, we would allow an appeal so long as there was a reasonable chance of reversal, we would nevertheless, upon a conviction and sentence, subject the convict to imprisonment at hard labor in the State prison while the appeal is undecided.

We recommend the adoption by the Association of the following resolution:

In all criminal trials of the grade of felony a verbatim report of the trial should be made by an official stenographer; in case of appeal this report of the trial should be written out, and transmitted to the appellate court; and the appellate court should be prohibited from reversing any judgment for error of law, where the court, upon an examination of the testimony returned, should be of opinion that the verdict was clearly right.

THE JUDICIAL OFFICE.

The former report of this committee contained so much on the subject of the judicial office, that the association will hardly care to hear more from us. The learning, integrity and independence of the judges are matters of universal concern. How best to secure these ends is the problem. One class of thinkers advocates appointments by the executive, another advocates elections by the Legislature, another still elections by the people. We doubt whether a discussion here of the mode of selection would now answer a useful purpose; but we have no doubt that a majority of the profession, and of the people also, believe that in many of the States the terms of office are too short and the salaries too small. The judicial office should be able to command the services of the most competent persons, and they should be made independent of parties so long as they remain judges. This can be done best by giving them assured terms so long as they do their duty, adequate salaries, and some provision on retirement from the bench.

CHAMPERTOUS ENGAGEMENTS OF ATTORNEYS. Your committee believe that the administration of justice is corrupted by the practice on the part of members of the profession in some jurisdictions of prosecuting causes on contingent fees and buying in pending or prospective litigations. The right to appear as an attorney or counsel in the courts of justice is conceded by the State as an exclusive privilege to persons possessing certain qualifications. It is a franchise of great value and is conferred upon condition, expressed or implied, that the person who receives it from the State will exercise it for the purpose of promoting justice and the improvement of the laws. His position is universally regarded as that of a quasi officer of the court, and it is hardly compatible with this relation that he should be a private speculator in litigation. The legal profession has been injured, its estimation lowered in the opinion of the people and its influence diminished by the sanction which in certain quarters it has given to these practices. In some States these practices are denounced by statute; in others the rule of the ancient common law, enforced by early English statutes, has been held to obtain; while in still others, the courts have held that the position of a lawyer at the bar of the court is not incompatible with his being a secret partner in the litigation in which he is engaged. In truth the prosecution of a cause on a contingent fee, or upon an understanding that the

compensation of the attorney or counsel is to depend upon the favorable result of the litigation, is not under all circumstances to be condemned; for otherwise it might sometimes be impossible for persons having meritorious causes of action to command the aid of competent counsel. The prosecution of a cause by an attorney on a contingent fee, unless he supports the litigation with his own money, is not unlawful maintenance, according to the definition of Blackstone or the general opinion of judicial tribunals in this country. The offense consists in prosecuting the suit of a client upon an agreement to have a part of the money or thing recovered for the services of the attorney, or the prosecution of a suit upon a contingent fee, the attorney agreeing to support the litigation at his own expense. We know that the administration of justice is in some jurisdictions scandalized by the practice on the part of attorneys of buying up or taking an interest in claims against wealthy persons or corporations and prosecuting them, with the view of inducing the defendant to agree to a compromise in order not to be harassed by litigation.

An efficient remedy for such abuses would probably be found in publicity. The theory of the administration of justice in American communities is that the courts are open, that the greatest publicity prevails and that the record expresses the whole truth. But where the attorney or counsellor who represents a suitor in a cause appears upon the record and stands before the court in his character of attorney or counsel merely, and nevertheless is at the same time a secret partner in the litigation, he does not disclose to the court his real attitude, which is that of a party as well as that of attorney or counsel; nor does the record, in describing him as attorney and counsel merely, express the whole truth. The ends of justice would probably be attained in every such instance, if the counsel for the plaintiff, or for the defendant, where he is claiming affirmative relief from the plaintiff, were required to describe himself not only as attorney or counsel but also as interested in the claim, at the time of his first appearance in the case. The court could then better estimate the value of his acts and declarations in the various phases of the cause; and if he were to shed tears over the supposed wrongs of his client, as champertous advocates have often keen known to do, it would promote the ends of justice for the court and jury to know whether he were weeping from a real sense of the grievance to which his client had been subjected, or for an aliquot part of the judgment to be recovered.

Upon this question your committee recommend the following resolution:

Whenever an attorney or counsel has au interest in a claim or counter-claim in litigation he must describe himself as so interested at the time of his first appearance in the case, and if he fails to do so, and the fact of his interest is shown on the trial, the claim or counter-claim must be disallowed.

In closing it may be proper to add that the underdersigned concur in the several resolutions which the foregoing report recommends to the association. They also concur in the general arguments made in support of these resolutions, without each being committed to all of the reasons given for the conclusions reached.

The several resolutions recommended are lows:

as fol

1. The law itself should be reduced, so far as possible, to the form of a statute.

2. The greatest possible care should be exercised in the selection of jurors, much greater than is now exercised in most of the States. No person should be put upon the jury list who is not known to be a per

son of probity, intelligence and good repute. It should be borne in mind, that a juror is in a very important sense a judge, though a temporary one, and something like the care required in the selection of permanent judges should be required in the selection of jurors.

3. A jury should not be called in civil cases unless demanded by one of the parties.

4. It should be made the duty of the judge in every case, civil or criminal, to instruct the jury as to the law, and it should be his right in the exercise of a sound discretion, to advise them as to the facts, cautioning them at the same time that they are not bound by his opinion except as to matter of law. 5. The judge should not be required to reduce his instructions upon matter of law to writing, where a competent stenographer, appointed under a provision of law or selected by the parties, is present, by whom such instructions may be taken down as delivered.

6. The trial court on a motion for new trial, or the appellate court on appeal upon a question of fact, should set aside a verdict where it plainly appears to be unsupported by substantial evidence of a credible character, or to be contrary to the weight of trustworthy evidence.

7. The practice of submitting to juries special interrogatories upon the material or controlling facts in issue, and of disregarding their general verdict when inconsistent with their answers to such interrogatories, ought to be extended.

8. The law should provide for the settlement of the facts in the court of first instance, subject perhaps to one appeal, and the courts of first instance should be so constituted as to enable them in general to settle satisfactorily the issues of fact.

9. In all criminal trials of the grade of felony a ver batim report of the trial should be made by an official stenographer; in case of appeal this report of the trial should be written out and transmitted to the appellate court, and the appellate court should be prohibited from reversing any judgment for error of law, where the court, upon an examination of the testimony returned, should be of opinion that the verdict was clearly right.

10. Whenever an attorney or counsel has an interest in a claim or counter-claim in litigation, he must describe himself as so interested at the time of his first appearance in the case, and if he fails to do so, and the fact of his interest is shown on the trial, the claim or counter-claim must be disallowed. All of which is respectfully submitted.

DAVID DUDLEY FIELD,
JOHN F. DILLON,
GEORGE G. Wright,
SEYMOUR D. THOMPSON.

PLEDGE-TROVER AND CONVERSION- TENDER
OF PAYMENT.

MASSACHUSETTS SUPREME JUDICIAL COURT,
JULY 3, 1886.

CUMNOCK V. INSTITUTION FOR SAVINGS IN NEWBURY-
PORT.

A tender of payment of a debt is necessary to enable a
pledgeor to maintain trover for a conversion of property
pledged, unless the lien created by the pledge has been
otherwise discharged.

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not set forth any legal cause of action against the defendant. After a hearing the demurrer was sustained, and plaintiff appealed.

Felix Rackemann, for plaintiff.

D. L. Withington and N. W. Jones, for defendant. FIELD, J. It was conceded at the assignment that the first count was bad, on the ground, as was said, that it did not allege either a payment of the note, or a tender of payment. Both counts apparently proceed upon the theory that the payment of the note and the return of the stock were to be concurrent acts: but the contract of the defendant was to keep the certificate of stock with due care, and to return it to the plaintiff if the note was paid at maturity, or when after maturity the note was paid, unless the stock was meanwhile lawfully sold to pay the debt. The contract of pledge is collateral to the contract to pay the debt. The promise is to return the property pledged when the debt is paid. The pledgee can maintain an action to recover the debt without an offer to restore the property pledged (Taylor v. Cheever, 6 Gray, 146), and he can maintain an action for money lent after he has converted the property pledged, by an unlawful sale, and can recover the amount of the debt, less the amount realized by the sale, if the defendant pleads this in set-off. Fay v. Gray, 124 Mass. 500.

plaintiff could not maintain the action, because there had been no tender of the sum originally secured by the pledge.

Halliday v. Holgate, L. R., 3 Exch. 299, was trover, by the assignee in bankruptcy of the pledgeor against the pledgee, for a wrongful sale of the property pledged. There had been no payment or tender of payment of the debt, and the court refused to sustain the action even for nominal damages, on the ground, that to maintain trover, the plaintiff must have the right of immediate possession, which he did not have until the debt was paid.

TheMassachusetts cases declare that a tender is necessary to enable the pledgeor to maintain trover against the pledgee, for a conversion of securities, when the lien created by the pledge has not been otherwise discharged. Jarvis v. Rogers, 15 Mass. 389; Jarvis v. Rogers, 13 id. 105; Hancock v. Franklin Ins. Co., 114 id. 155. See Hathaway v. Fall River Nat. Bank, 131 id. 14. Neither the English nor the Massachusetts cases however determine what amounts to a sufficient tender, although there are expressions which indicate that a tender good at common law is required.

When replevin or detinue is brought, there may be a substantial reason why there should be an actual tender, because the plaintiff, if he recover judgment, recovers or may recover the possession of the property, and the court might well order the money tendered paid into court before entering such a judgment. There is a technical reason why a formal tender may be held necessary in trover, because if the lien created by the pledge has not been otherwise discharged, it may be held that it can be discharged only by the

Notwithstanding what was said in Cortelyou v. Lansing, 2 Caine Cas. 200, we think that the assumption is false that a contract of pledge, as a security for the payment of money, is analogous to a bilateral executory contract in which the two parties mutually promise to do concurrent acts, and the promise of one is the consideration of the promise of the other. The mod-payment of the debt, or if the defendant will not reern authorities therefore require a tender of payment of the debt to enable the pledgeor to maintain trover for a conversion of property pledged, unless the lien created by the pledge has been otherwise discharged. The distinction between a tender of payment of a debt due, and an offer to perform one of two mutual promises to do concurrent acts, is well known. Cook v. Doggett, 2 Allen, 439. Neither count in this case alleges a good tender at common law. Dunham v. Jackson, 6 Wend. 22; Bakeman v. Pooler, 15 id. 637.

Tally v. Freedman's Sav. & Trust Co., 93 U, S. 321, was replevin of a certificate of indebtedness, brought by the pledgeor against a purchaser from the pledgee, who bought bona fide, and without notice or knowledge of the plaintiff's claim, and it was held that a previous tender was necessary, and that an offer to pay was not equivalent to a tender.

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In Lewis v. Mott, 36 N. Y. 395, the action was brought by the assignee of the pledgeor against the vendee of the pledgee. The court held that there was no ground upon which the defendant could be liable to an account, or upon which the plaintiff's right to redeem could be enforced against the defendant;" but the chief justice proceeded to consider the action as if it were tort for alleged conversion. The pledgeor had offered in writing to pay the defendant the debt for which the securities were pledged, and had demanded the securities, and the defendant had refused to comply with the demand. The chief justice says: "Clearly on no theory was he (the pledgeor) entitled to them (the securities), except upon the payment of the amount of the lien, or a tender and refusal. Such tender has not been made. An offer to pay is not the equivalent for an actual tender."

Donald v. Suckling, L. R., 1 Q. B. 585, was detinue by the pledgeor against a sub-pledgee of the pledgee, to whom the pledgee had delivered the debentures pledged as security for a loan to him larger than the debt for which the debentures were originally pledged. Both debts remained unpaid, and it was held that the

ceive payment, by a tender of payment, which is the only thing the common law considered as in any respect an equivalent of payment, and trover can only be maintained when the lien has been discharged, and the plaintiff is entitled to the immediate possession of the property. But as the damages in trover are the value of the property, less the amount of the debt, except for this technical reason, a want of a formal tender would not be a greater objection against maintaining trover than against maintaining an action for a breach of the contract to keep the property safely, and to deliver it to the pledgeor on payment of the debt. Perhaps in contract, strictly speaking, no breach is shown by a failure to return the security unless the debt is paid, or there has been a good common-law tender of payment; but there are cases which hold that a formal tender is unnecessary. Cortelyou v. Lansing, 2 Caine Cas. 200; Fletcher v. Dickinson, 7 Allen, 23; and Wilson v. Little, 2 N. Y. 443, which was an action on the case for wrongfully selling stock, but whether trover or not is uncertain. In each of these cases however the property pledged had been wrongfully sold to the pledgee, which was in itself a conversion and a breach of the contract.

In Fletcher v. Dickinson, ubi supra, the action was contract. The defendant, by the sale and assignment of the mortgages, had received sufficient money to pay the plaintiff's debt to him. There had been in fact an offer in writing to pay the debt, and although the plaintiff "did not tender or exhibit any money, his counsel was prepared to pay the notes, and so informed the defendant." The court held that the sale was illegal, and say that "formal tender of the amount of the notes would have been a useless ceremony such as the law never requires;" citing Cortelyou v. Lansing, ubi supra.

The distinction between an unconditional offer to pay a debt, accompanied with a present ability and intention to pay, and a formal tender, is certainly technical, and the tendency of the law undoubtedly is to ignore technicalities, which serve no useful pur

pose, and to administer the same substantive law in one form of action as in another, where different forms of actions are permitted. Such an offer to pay would undoubtedly be sufficient to maintain a bill in equity to redeem the property pledged, and we do not deem it necessary to decide whether such an offer would not be sufficient to enable the pledgeor to maintain either tort or contract against a pledgee who refused to accept the offer and return the property pledged, or whether any offer or tender at all is necessary to maintain tort or contract against a pledgee who has concerted the property pledged by a wrongful sale of it, and applied the proceeds of the sale to the payment of the debt.

[Omitting a point of pleading.] Judgment affirmed.

All the justices sitting concur in the result, and a majority of them in the reasons given in this opinion.

MORTGAGE-NOTES SECURED BY DESCRIP
TION.

CONNECTICUT SUPREME COURT OF ERRORS.
APRIL 10, 1886.

WINCHELL V. CONEY.*

Five

Three notes all alike except in the amount read:
years after date for value received, I promise to pay-
or order, dollars, with interest annually at six per
cent. In an action to foreclose a mortgage given to
secure the payment of the notes, held, that the failure to
state when the interest was payable was a mere omis-
sion and not a false description.

ACTION to foreclose a mortgage. The opinion states

the case sufficiently.

J. W. Alling, for plaintiff.

S. E. Baldwin and J. H. Whiting, for defendant. CARPENTER, J. This is a suit to foreclose a mortgage. The mortgage was given to secure three notes, amounting to $21,000. The three notes bear the same date, are payable in five years from date, "with interest annually at six per cent." These notes are described in the mortgage as follows: "One note for $5,000, dated May 10, 1881, bearing interest at six per cent per annum, payable five years from date; one note for $6,000, dated May 10, 1881, payable five years from date, bearing interest at six per cent per annum; and one note for $10,000, dated May 10, 1881. payable five years from date, bearing interest at six per cent per annum."

The complaint as amended shows the terms of the note and the condition of the mortgage deed, alleges a mutual mistake, by which the parties failed to state in the condition of the mortgage that the interest was payable annually, and prays for a reformation of the mortgage, for a foreclosure, and for possession.

One of the defendants is a non-resident. He attempted to remove the case to the Circuit Court of the United States. From that attempt arises a question as to the jurisdiction of the Superior Court.

The defendant, Coney, denies that the deed can be reformed as against him. There are also some questions made as to the admission of evidence, the propriety of the amendments, etc. But passing by all other questions for the present, we will first consider whether the plaintiff is entitled to a foreclosure of the mortgage as it stands. If he is, many of the questions discussed are of little importance.

As no part of the principal secured by the mortgage *6 N. E. Rep. 215.

is now due, a foreclosure can only be for interest due and unpaid. The condition of the mortgage does not of itself show that the interest is payable before the maturity of the notes; but it purports to secure the notes "according to their tenor." The condition is: "Now therefore if said notes shall be paid according to their tenor, then this deed shall be void and of no effect; otherwise it shall remain in full force."

The notes are all alike except in the amount. Omit. ting that, they all read: "Five years after date for value received, I promise to pay Alvord E. Winchell or order, $ with interest annually at six per cent." We interpret that as a promise to pay interest annually.

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That is the obvious meaning of the words and is doubtless what the parties intended. So that the real question is, whether the condition sufficiently describes the notes to secure the payment of annual interest as against Coney, who has acquired au interest in the equity of redemption from the mortgagor.

A large number of cases have been decided by this court respecting the certainty required in the description of debts secured by mortgage. It has been held that the nature of the debts must be truly stated, whether by note, bond or open account; that the amount of the debt must be stated, not with exactness, but as nearly as may be, fairly and without fraud; and the character of the indebtedness, whether contingent or absolute.

In all these respects this description meets the requirements fully. It goes further, and gives the terms of the notes in part, the date, when payable, and the rate of interest. But it fails to tell us when the interest is payable. Is that failure simply an omission, or does it amount to a false description? We think it is an omission merely. If a note is given on time with interest, and the time for the payment of the interest is not specified, it is payable when the principal is. The same rule of construction however ought not to be applied to the condition of the mortgage. The object of each instrument differs widely from that of the other. The object of the note is to embody the contract between the parties. Of course it must be complete in itself and express the whole contract. The intent of the parties must be gathered from the language used. The object of the other is to identify the note or debt secured by the mortgage, and give reasonable notice of the extent of the incumbrance. All the terms of the note are not essential to that object; hence all need not be stated. The particularity required in making a contract is not required in describing it. Hence it may be safely assumed that some particulars may be omitted in the description. Therefore the failure of the condition to tell us when the interest is payable does not necessarily afford ground for the inference that it is payable when the principal is, especially in notes for a large amount and with a long time to run. It is a matter of common observation that a large portion of the indebtedness of the world pays interest annually or oftener, as National, State, municipal and corporation bonds. So also with long time loans by savings banks and insurance companies. Loans by individuals are hardly exceptions to the rule. We apprehend that it is an unusual occurrence to find a loan for a large amount, to run for more than one year, unless it is stipulated that interest shall be paid annually at least. Therefore there can be no presumption that payment of interest was to be postponed for five years.

Moreover the condition required the mortgagor to pay the notes according to their tenor. Obviously "their tenor "" was not wholly expressed. There was one omission, and that omission was the subject of conversation between Coney and the mortgagor before

he took his deed. He sought information, but not from the right source. The mortgage pointed him directly to the notes. He could there obtain definite, certain and precise information. Instead of inquiring in that direction, he chose to rely upon the uncertain, and as it proved the unreliable recollection of the mortgagor. That was his own folly. He was not deceived or misled by the record.

We have no case in this State directly in point. In the cases in which the general question is discussed we find no principle which would make this description fatally defective. On the other hand certainty of description in every particular is dispensed with, provided the record gives reasonable notice of the nature and extent of the incumbrance. Stoughton v. Pasco, 5 Coun. 442; Merrills v. Swift, 18 id. 257.

But there are cases in other jurisdictions which more closely resemble this.

In Richards v. Holmes, 18 How. 143, a case very much like this, Mr. Justice Curtis says: "It was argued that the trust deed does not describe the note as bearing annual interest, and consequently that the subsequent incumbrancer has a right to insist, that as against him, there was no power to sell for non-payment of such interest. It is true that the deed does not purport to describe the interest which is to become due on the note; but it clearly shows that it bore interest at some rate, and payable at some time or times, and this was sufficient to put a subsequent incumbrancer on inquiry as to what the rate of interest and the time or times of payment were. The deed in effect declares, and its record gives notice to subsequent purchasers, that its purpose is to secure the payment of such interest as has been reserved by the note; the amount, and date, and time of payment, of which are mentioned. We do not think the mere omission to describe in the deed what that interest was to be, is a defect of which adyantage can be taken by the complainants."

In Pierce v. Parker, 4 Metc. 80, a note was described in a deed of release as payable May 21, 1834, when in fact it was payable April 21st. It was held that parol evidence was admissible to identify the note. The court says: "And it is a well-settled principle of law that when an instrument, which is offered to prove the subject-matter described, differs in one or more particulars from the thing described, evidence is admissible to show their agreement or identity, notwithstanding such misdescription."

In Worthington v. Hylyer, 4 Mass. 196, Parsons, C. J., saye: "But if the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected."

In Bourne v. Littlefield, 29 Me. 302, the condition of a mortgage deed was, that if the mortgagor or his assigns should pay $500 at a future specified time, then the deed, as also a note bearing even date with it, given by the mortgagor to the mortgagee to pay that sum at the time stated, should both be void. In a bill to redeem it was held that parol evidence was admissible to show that a note of $500, payable on demand with interest, was the one secured by the mortgage. Surely if a misdescription may be corrected by parol evidence, a defective description, which defect the note when produced will supply, cannot be a serious objection, and cannot impair the security. See also Johns v. Church, 12 Pick. 557; S. C., 23 Am. Dec. 651; Hall v. Tufts, 18 Pick. 445; Jackson v. Bowen, 7 Cow. 13.

In Webb v. Stone, 24 N. H. 282, the marginal no te is as follows: "It is not necessary that all the particulars of the note secured should be set forth in the con

dition of the mortgage. It is enough if it appears with reasonable certainty to be the note intended."

In Cleavenger v. Beath, 53 Ind. 172, the note did not correspond with the description of the note in the mortgage. It was held that the note controlled and cured the defective description in the mortgage. These cases illustrate the distinction we would emphasize, that that part of a contract describing the subjectmatter to which it relates need not be certain in itself, and does not require that degree of certainty that is required in defining the thing to be done by each of the contracting parties. One object of the condition of a mortgage is to point out the debt intended to be secured thereby. It of itself imposes no obligation upon either of the parties. It is descriptive in its character, and is like the descriptive part of a deed, or other instrument of conveyance, describing the property conveyed. It need only point out the thing conveyed with reasonable certainty. It is not required that the description shall be certain and precise in every particular.

That these notes were sufficiently described for all the purposes of identity can admit of no question.. That the description gave Coney all the information he required, or the means of obtaining information, is equally certain.

We may properly take another view of this question. The description in the mortgage, “bearing interest at six per cent per annum," is at least ambiguous. It clearly expresses the rate of interest, and would have done so if it had simply said "interest at six per cent." That would have been the way in which most people would have expressed it if that had been all that was intended.

When therefore the note is described as "bearing interest at six per cent per annum," it is reasonable to suppose that something more was intended. And what else could it be but to indicate the time or times for the payment of interest? Finding that expression there, Coney had no right to assume that it was without meaning, and that no interest was payable until the end of five years. He knew that the notes were on interest and that it was payable at some time. As the description left that matter uncertain he was bound to inquire. Where to look for information could not be a matter of doubt. In some States it is held that a mortgage and the note or notes secured by it, for all the purposes of security, constitute but one transaction--virtually one instrument. This must be so where the mortgage sufficiently identifies the note. Of course to comprehend the full meaning of the transaction the note as well as the mortgage must be examined. The mortgage points him directly to the note. He cannot be permitted to omit inquiry and thus say that the mortgage misled him. By so doing he would not only be taking advantage of his own negligence, but he would thereby make others responsible for that negligence.

There is no hardship in requiring him to resort to the holder of the notes for information. Suppose the mortgage had stated in terms that the interest was payable annually; even then if a purchaser would obtain exact information he must make inquiry. From the nature of the case the mortgage could not tell how much interest would remain in arrears at any subsequent time. If important, he may as well inquire to ascertain when interest is payable as to ascertain how much is unpaid.

Again in considering what notice the mortgage gave to Coney, we must bear in mind not only the circumstances of this particular case, but also the practice or the usual course of capitalists in loaning money. Money, especially in large amounts, is income-producing as much so as houses or lands. We should about as soon expect to find a real estate owner renting a

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