(F) Mortgagees and their Assignees, how to account, &c.

of interest, on the principal sums due to the said John Damer?" From this order Lord Milton appealed to the House of Lords, and the principal objection urged by him against directing such issue was, that considering the state of the evidence before the court, it was unjust to direct an issue; because the answer of Mr. Damer, which was read by the defendants at the hearing, denied any agreement between him and Packington Edgeworth, to reduce the rate of interest; and this denial, being set in opposition to any conclusion drawn from Harding's evidence, took away all ground for the court's interposing: whereas, by directing an issue, upon the trial of which Mr. Damer's answer could not be read for the appellant, he would be deprived of that evidence which the defendants had made evidence at the hearing of the cause. But it was adjudged that the order should be affirmed, with this addition, viz. that the plaintiff should be at liberty at such trial to read the answer of Damer.

Lord Milton v. Moore Edgeworth and Damer Edgeworth, infants, 6 Brown's Ca. Parl. 580.

Interest due upon a mortgage of money which is in settlement will not be considered as in the nature of rent, and, consequently, go with the mortgage; but if the tenant, under the settlement, die in the broken part of the quarter or half-year, the interest will be apportioned; and what is due from the last day of payment, to the day of the death of the tenant for life, will be paid to his executor, and the residue to him in remainder.

Edwards v. Countess of Warwick, 2 P. Wms. 171.

The reason is, that interest increases on a mortgage from day to day; and the mortgagor, whenever he pays the principal and interest, must pay the interest up to the day of payment.

Wilson v. Harman, 2 Ves. 672. See Wade v. Wilson, 1 East, 199.||

In this, a mortgage likewise differs from stock, for dividends upon stock are by the legislature made payable only half-yearly, and are in nature of rents, and, consequently, not liable to apportionment.

Wilson v. Harman, 2 Ves. 672.

A question has arisen, whether a devisee of an equity of redemption, in suing to redeem, could be allowed to set off against the principal money and arrears of interest due at the death of the mortgagor, a sum of money due for arrears of interest on a legacy given by the mortgagee to the mortgagor, and which had not been received by the mortgagor; and it was decided that he could not, but must pay the whole principal money and interest. The Master of the Rolls allowed, that if the parties had settled accounts the day before the mortgagor's death, the accounts must have been taken in the way the devisee intended, but it did not follow that the account after King's death was to be so taken. In our law, the debt still subsisted; and it was only by a process in our courts that the adjustment took place, though by the civil law it operated ipso jure. Until that adjustment, the debts might be separately assigned, for they were not extinguished.

Petat v. Ellis, 9 Ves. 563.||

On the statute 12 Ann. stat. 2, c. 16, § 1, which enacts, "That all bonds and assurances for the payment of any principal, or money to be lent upon usury, whereupon there shall be reserved or taken above five in the hundred, shall be utterly void;" parol evidence has been admitted to show usurious

(G) Of Mortgages of Personal Property.

interest taken by a mortgagee, though there was none reserved upon the face of the deed itself.

Adlington v. Cann, 3 Atk. 154.] Vide post tit. Usury, (B).

A mortgagee of a slave, who appears to have acted in good faith in hiring him out, and to have rendered a true account of the hire; held to be chargeable with no more, though the slave might have been hired for more. Clark v. Robbins, 6 Dana, 350. See as to the hire of slaves by a mortgagee, Woodward v. Fitzpatrick, 2 B. Monr. 61; Field v. Beeler, 3 Bibb, 18; Fenwick v. Macy's executors, 1 Dana, 286; Wilkins v. Sears, 4 Monr. 348.

It is a general rule, though not without exception, that a mortgagee in possession is not allowed for new improvements erected upon the premises. Dougherty v. M Colgan, 6 Gill & Johns. 275; Murphy v. Mead, 1 Jones' Exch. 620; Moore v. Cable, 1 Johns. Ch. 385.

But expenditures for necessary repairs are allowable.

Quin v. Britain, 1 Hoff. 353; Brainbridge v. Owen, 2 J. J. Marsh. 465; Rawlings v. Stewart, 1 Bland, 22.

The mortgagee will not be allowed a charge against the mortgaged premises for insurance against fire, unless by express agreement of the mortgagor or of the owner of the estate.

⚫ Faure v. Winans, Hop. 283.

While he is in possession of the premises, the mortgagee is bound to make all reasonable and necessary repairs.

Dexter v. Arnold, 2 Sumn. 108:

A mortgagee in possession of the premises will be made to account for all loss and damages occasioned by his gross negligence in respect of bad cultivation and non-repairs of the premises.

Weagg v. Denman, 2 Yo. & Coll. 117.

When the mortgagee takes possession of the mortgaged premises before foreclosure, and occupies them himself, he must account for the rents and profits, at the rate of rent which the premises, by ordinary care, would have produced, after deducting the taxes and repairs.

Van Buren v. Olmstead, 5 Paige, 9; Brainbridge v. Owen, 2 J. J. Marsh. 65; Eaton v. Simonds, 14 Pick. 98.

A mortgagee in possession is accountable for the rents received, and no further, unless he has been guilty of gross negligence ;(a) but he is not accountable for interest on the rent.(b)

(a) Robertson v. Campbell, 2 Call, 421; Saunders v. Frost, 5 Pick. 260; Metcalf v. Campion, 1 Moll. 238. (b) Breckenridge v. Brooks, 2 A. K. Marsh. 239.

(G) Of Mortgages of Personal Property.

A MORTGAGE of personal property is somewhat similar to a pawn, but is distinguishable from it. By a conveyance of goods in gage or mortgage, the whole title passes conditionally to the mortgagee, and if not redeemed at the time stipulated, the title becomes absolute at law, though equity will interfere to compel a redemption. But in a pledge, a special property only passes to the pledgee, the general property remaining in the pledger. Bouv. L. D. Mortgage.

When the mortgage is silent on the subject, the mortgagee of goods is entitled to immediate possession.

Case v. Winship, 4 Blackf. 425.

(G) Of Mortgages of Personal Property.

To make a valid mortgage of goods, the possession must in general be in the mortgagee.

Clow v. Woods, 5 S. & R. 278; Portland Bank v. Stubbs, 6 Mass. 422; Gale v. Ward, 14 Mass. 352; Tucker v. Buffington, 15 Mass. 477; Bedlam v. Tucker, 1 Pick. 389; Bonsey v. Amee, 8 Pick. 236; Bullock v. Williams, 16 Pick. 33; see Morgan's executors v. Biddle, 1 Yeates, 3; Wilt v. Franklin, 1 Binn. 521; Dawes v. Čope, 4 Binn. 258; Cunningham v. Neville, 10 S. & R. 202; Babb v. Clemson, 10 S. & R. 419; Eagle v. Eichelberger, 6 Watts, 29; M'Culloch v. Hutchinson, 7 Watts, 434; Hoofsmith v. Cope, 6 Whart. 53; Holbrook v. Baker, 5 Greenl. 309; Gardner v. Adams, 12 Wend. 297; Look v. Comstock, 15 Wend. 244.

There have been cases of mortgages of chattels, which have been held valid without any actual possession of the mortgagee; but these stand upon peculiar grounds, and may be deemed exceptions to the general rule.

Homes v. Crane, 2 Pick. 607; 5 Pick. 59; 5 Johns. 261.

A mortgage of a factory and of machinery "soon to be placed there;" the mortgagee did not take possession, and the mortgagor occupied the premises as formerly. An attachment was afterwards issued against the mortgagor, and the property attached, and a person in the factory was appointed keeper by the sheriff. The keeper subsequently absconded, and the mortgagee took possession of the mortgaged property, including what had been attached. Held, that the possession by the mortgagee, of the property attached, after the custody was lost by the sheriff, completed the title of the mortgagee. Carrington v. Smith, 8 Pick. 419.

Where the mortgaged property, by an agreement contained in the mortgage, was to remain in possession of the mortgagor, and it did so remain ; but before any attachment or levy was made on the same, the mortgagee took possession; it was held, that the mortgage was valid against creditors, although the property was not removed.

Adams v. Wheeler, 10 Pick. 199.

If the mortgagor of articles of personal property belonging to a business establishment, dispose of such articles and convert them into money, and buy other articles with the avails, the title to the latter will not, by mere operation of law vest in the mortgagee; but if they are procured for the simple purpose of replenishing the establishment mortgaged, by supplying the place of lost or worn-out articles belonging to it, and they become attached to or incorporated with it, they by right of accession follow the principal.

Holly v. Brown, 14 Day, 255. See Winslow v. Merchants' Ins. Co., 4 Metc. 306.

When personal property has been mortgaged, the possession may, in some instances, remain with the mortgagor. But if the mortgagor, while in possession, sell or pledge the property to a bona fide purchaser or pledgee, his rights will be paramount to those of the mortgagee.

Lewis v. Stevenson, 2 Hall, R. 63.

The mortgage on the stocks without possession will not avail, by way of hypothecation, against attaching creditors.

Goodenow v. Dunn, 21 Maine, 86.

A, for a valuable consideration, takes a security upon a reversionary sum of stock, at a time when, by reason of the death of the person in whose name the stock stood, without legal representatives, no notice of the encumbrance could be given to the trustee of the fund. A does not attempt, by distringas or otherwise, to perfect his security. Afterwards B, for a valuable consideration, and without knowledge of A's encumbrance, takes a security upon

Q

(H) Of Disputes among Mortgagees.

the same fund, and at the same time serves a writ of distringas on the Bank of England. B's security has a priority over that of A.

Etty v. Bridges, 2 Y. & C. 486.

Where both proved that a bill of sale, though absolute in its terms, was intended only as a collateral security for a debt due, and this was done with good faith; the transfer was holden to be a valid mortgage.

Read v. Jewett, 5 Greenl. 96.

The issue of a mortgaged slave, born after the title of the mortgagee has become absolute at law, and during the possession of the mortgagor, is liable for the payment of the mortgage debt.

Iglehart v. Merriken, 8 Gill & Johns. 39.

(H) Of Disputes among Mortgagees.

A applies to B for a loan of money upon a security of a mortgage of slaves then held by A, and B, being doubtful as to A's title to the slaves, and apprehensive that C has some claim to them, applies to C to know whether he has such claim, explaining the reason of his inquiry; upon which, C informs him that he has no right to the slaves, being at the time apprized of all the facts on which his right, if any he has, depends; B lends the money and takes the mortgage of the slaves. Held that, in equity, C cannot be allowed to assert the right he had disclaimed against the mortgagee B.

Dickinson v. Davis, 2 Leigh, 401.

A purchases lands of B, and to secure the purchase-money, payable in instalments, conveys the same land to a trustee upon trust to permit A to take the profits thereof, to his order, use, and benefit, till the time appointed for the payment of the last instalment, and then in default of payment to sell the subject and apply the proceeds to the satisfaction of the debt; afterwards, and before the last instalment of the debt falls due, A mortgages the same lands, and all yearly rents, issues, and profits thereof, and all his right and interest therein to C to secure a debt due to him; held, that C is entitled, in preference to B, to all the profits accruing prior to the time when the last instalment of the debt to B falls due.

Little v. Brown, 2 Leigh, 353.

A second mortgagee took a conveyance of the equity of redemption, in consideration of debts due to himself and other mortgagees, which he thereby took upon himself and covenanted to pay; held, that his debt was extinguished, and, therefore, that in a foreclosure suit instituted against him, by the parties entitled to the first and third mortgages, he was not entitled to be paid his debt in priority to the third mortgage.

Brown v. Stead, 5 Sim. 535.

A subsequent mortgagee who seeks to redeem from the purchaser under a statute foreclosure of a prior mortgage, is not bound to pay the costs of such foreclosure, which foreclosure, as to his rights, is wholly inoperative. Vroom v. Ditmas, 4 Paige, 526.

Junior encumbrancers, known to the senior mortgagee, should be parties to his bill for a foreclosure.

Cooper v. Martin, 1 Dana, 25.

Where an estate is mortgaged, and the mortgagee assigns the mortgage to a third person, and subsequently takes a quit-claim deed from the mort

Murder and Homicide.

gagor, the mortgage title does not merge in the fee. The mortgagee then becomes mortgagor, and the assignee mortgagee.

Pratt v. Bank of Bennington, 10 Verm. 293.

Where a mortgage has been cancelled and discharged, and a new security on the land has been taken for the debt, the mortgage is to be considered as if it had never existed, and intervening encumbrances are let in.

Stearns v. Godfrey, 4 Shepl. 158.g

MURDER AND HOMICIDE.

THE taking away the life of another, whether it amount to felony or not, is called by the general name of homicide, and is thus branched out and distinguished by our law:

1. Into murder, which is usually defined the wilful killing of a person through malice prepense. And it is said, that anciently it signified only the private killing of a man, for which, by force of law, introduced by King Canutus, for the preservation of his Danes, the town or hundred where the fact was done was (a) amerced, unless it could be (b) proved that the person slain was an Englishman, or unless they could produce the offender. And this law was provided to avoid the secret murder of the Danes, who were hated by the English, and oftentimes privately murdered by them.

Bract. 134; Stamf. 17; Kelyng, 121; and vide Fortescue's Pref. to Absolute and Limited Monarchy, 59. (a) The amercement was forty-six marks, Wilk. Sax. Law, 280. (b) This proof was called Engleshire, and was various according to the custom of several places, but most ordinarily it was by the testimony of two males, of the part of the father of him that was slain, and by two females of the part of the mother. Hal. Hist. P. C. 447.

But this law having been abolished by 14 E. 3, the killing of any Englishman or foreigner through malice prepense, whether committed openly or secretly, was by degrees called murder, and punished with death. But by the common law, as also by the statute of 25 E. 3, c. 4, clergy was promiscuously allowed, as well in case of murder as of homicide or manslaughter, before the statutes of 23 H. 8, c. 1, 25 H. 8, c. 3, 1 E. 6, c. 12, 5 & 6 Ed. 6, c. 10, by which clergy is taken away from murder ex malitia præcogitatâ.

Hal. Hist. P. C. 450; Hawk. P. C. c. 31, § 2.

2. Manslaughter, by which is understood such killing as happens either on a sudden quarrel, or in the commission of an unlawful act, without any deliberate intention of doing any mischief at all, and in which the offender is allowed his clergy, though it be felony, and differ from murder only in degree and quality. Hence it is, that upon an indictment of murder, the party offending may be acquitted of murder, and yet found guilty of manslaughter, as is every day's practice. As it is done without premeditation, it is held that there can be no accessaries to it before the fact.

3 Inst. 55; Dalt. c. 94; Hal. Hist. P. C. 450; Hawk. P. C. c. 30, § 1.