doctrine is not recognized in the United States, and has been abolished by statute in England.1 But there is another rule recognized by some courts, which, although quite distinct from the above stated doctrine, is said to be an outgrowth or branch of the technical doctrine of tacking, and which may be stated as follows; when a mortgagee has made further advances to the mortgagor in continuation of those secured by the mortgage, and taken his bond, binding himself and his heirs, the mortgagee may tack such bond debt to his mortgage, as against the heir or devisee, who, in order to redeem, must pay the bond as well as the mortgage debt.2 But even this species of after a second incumbrance, enlarges his demand beyond the effect of his original contract, is in truth, as regards the second, only a third incumbrancer; and a third incumbrancer is nothing more as regards his original demand, though he purchases in the first incumbrance. The doctrine is justified by no one, upon the principles of natural justice, and rests for its support upon artificial reasoning." The assumed equity of the principle is that the latest mortgagee, when he lent his money, had no notice of the second incumbrance, and the equities between the second and third incumbrances being equal, the latter, in addition thereto, has the prior legal estate or title and he shall be preferred. In the language of one of the cases he hath "both law and equity for him"; the legal title and equity prevail over the equity. "But," the court continued, "the assumed equality of equity is not well founded. There is no color for it except in the idea that each claimant is a bona fide purchaser for a valuable consideration; but that does not produce equality in point of right. He whose incumbrance is thus overreached is prior in point of time, and at least equal in equity; and, therefore, should have the benefit of the maxim, Qui prior est in tempore potior est in jure." The same view has been taken by eminent American jurists. 4 Kent's Čom. pp. 177, 178; 1 Story Eq., § 413. While some early Kentucky cases seem to recognize the equity of tacking (see Bank of Ky. v. Vance, 4 Litt. (Ky.) 168; Nelson v. Boyce, 7 J. J. Marsh. (Ky.) 401; 23 Am. Dec. 411), yet a later case denies that the existence of the doctrine has been conclusively established in that court. Averill v. Guthrie, 8 Dana (Ky.) 82. 1. Chandler . Dyer, 37 Loring v. Cooke, 3 Pick. (Mass.) 48. Vt. 345; In Georgia, the doctrine is prohibited by statute. Georgia Code 1873, 1962. In England, the doctrine of tacking was abolished in 1874, by the Vendor and Purchaser Act, stats. 37 & 38 Vict., ch. 78, § 7; but this statute was repealed in 1875 by the Land Transfer Act, 38 & 39 Vict.,ch. 87, § 129. Brown's Dict. With the abolition of the English system of tacking, we are relieved from a multitude of refined distinctions, which have given intricacy to this peculiar branch of equity jurisprudence. To illustrate the dimensions to which the learning on this subject has grown, Mr. Jones states the fact that in Mr. Coventry's edition of Powell on Mortgages, published in 1822, it occupies one hundred and twentyfive pages. See Jones on Mortgages, § 569. 2. Where this rule has been applied, it is generally admitted to be only a matter of practice to prevent circuity of action, but it has also been placed upon the principle that he who seeks equity must do equity. See Downing v. Palmateer, 1 T. B. Mon. (Ky.) 64; Hughes v. Worley, 1 Bibb (Ky.) 200; Chase v. M'Donald, 7 Har. & J. (Md.) 161; Lee v. Stone, 5 Gill & J. (Md.) 2: 23 Am. Dec. 589; Coombs v. Jordan, 3 Bland (Md.) 284; Colquhoun v. Atkinson, 6 Munf. (Va.) 550; Siter v. McClanachan, 2 Gratt. (Va.) 280. In South Carolina, it has been held that as the legal title is in the hands of the mortgagee by breach of the condition, the mortgagor, after foreclosure, will not be permitted to redeem until he has satisfied all the mortgagee's equitable demands, and on a bill filed by the mortgagor to redeem, he must pay not only the mortgage debt, but all other debts he may owe the mortgagee, whether by bond or simple contract. Walling v.Aiken, 1 McMull. Eq.2. tacking is never allowed, in any case, to prejudice the rights of third persons.1 Besides this employment of the word tacking, another use of it is found in the law relating to adverse possessions, to designate the connecting together of the possessions of successive holders of land so as to make a continuity of disseisin.2 In Pennsylvania, it has been decided that this species of tacking has no existence. Darrow v. Kelly, 1 Dall. (Pa.) 142; Anderson v. Neff, 11 S. & R. (Pa.) 208; Thomas' Appeal, 30 Pa. St. 378. See REDEMPTION, vol. 20, p. 608. See also, for a discussion of the cases on this matter, 1 Lead. Cas. Eq., Hare and Wallace's note to Marsh v. Lee, 2 1037 Vent. 337. 1. Boone on Mortgages, § 77, citing Coombs v. Jordan, 3 Bland (Md.) 330; Brown v. Stewart, 56 Md. 431; Hughes v. Worley, 1 Bibb (Ky.) 200. 2. See ADVERSE POSSESSION, vol. 1, p. 269 et seq. Subpoena Continued. Legislative bodies, 160, 169 Payment of fees and expenses, 166 Service, 165 Time of service, 168 Under statute, 161 Variance between writ and copy, 166 Where the writ may run, 164 Who may be compelled to attend, Subpoena duces tecum, 173 By whom issued, 174 Conditional examination of wit- Definition, 173 Documents, description of, 177 Obedience to writ, 176 Privileged documents, 179 Procedure, 176 Service upon parties. 174 Swearing the witness, 178 How and by whom issued, 181 Present extent of its use, 180 Protection afforded by the writ, 187 Return of the writ, 186 Service, 182 Subpoena for costs. 180 Subpoena to hear judgment, 180 Subpoena to name a solicitor, 180 Substituted service, 184 Where the writ may run, 182 To procure the attendance of wit- nesses, 158 Against carriers, 301 Assignment of mortgages, 250 Conventional subrogation, 290 Co-sureties, 226 Definition and general principles, |