kerhoff v. Brown, 4 Johns. Ch. 671; McDermutt v. Strong, id. 687; 20 Johns. 554.

Proceedings under sections 714 to 721, and section 574 of the Code of Civil Procedure, were intended as a substitute for the Creditor's Bill as formerly used in Chancery. Adams v. Hacket, 7 Cal. 201; Lynch v. Johnson, 48 N. Y. 33. So that any property which was reachable by a creditor's bill may now be reached by the process of proceedings supplementary to execution.

As we have said, any tangible property is the subject of seizure and sale on execution. But a patent right is not tangible property. It is an incorporeal thing, subsisting in grant from the government of the United States, yet it is subjected to some of the legal incidents of ownership of tangible property, such as succession and transfer; but as a creation of legislation it is transferable only according to the provisions of the statute which created it, and the only question is: has a court of equity power to compel its assignment and sale for the benefit of judgment creditors?

In 1852 Mr. Justice Nelson, in Stephens v. Cody, 14 How. (U. S.), held that a copyright to print and publish maps of the State of New Hampshire could not be reached by a creditor's bill, and applied to the payment of debts of the owner of the copyright, under a decree compelling a transfer in conformity with the provisions of the act of Congress. That, however, was mere obiter, because the decision of the question was not necessarily involved in the case. And afterward, in 1854, in the case of Stephens v. Gladding, which was a branch of the case of Stephens v. Cody, Mr. Justice Curtis declined to pass upon the question, because neither the copyright nor any interest in it had been attempted to be sold.

But in 1875 the Supreme Court of New York, in the case of Barnes v. Morgan, 3 Hun, 703, took up the dictum of Mr. Justice Nelson, in Stephens v. Cody, and approved of it as a sustainable legal proposition. An order had been made at Special Term directing the defendant in the case to deliver to a receiver appointed under supplementary proceedings certain patents and models appertaining thereto. From the order defendant appealed to the Supreme Court. Assignability of the patents by the voluntary act of the owner under the act of Congress which created them was conceded; and according to the authority of Hesse v. Stevenson, 3 B. & P. 577; Mass v. Adamson, 3 B. & A. 225, and Coles v. Barrow, 4 Taunt. 754, it had been established that patent rights of a bankrupt pass by act and operation of law to his assignees in bankruptcy for the benefit of creditors. In Hesse v. Stevenson, Lord Alvanley, in delivering the opinion of the court, used this language: "It is said that although by the assignment every right and interest, and every right of action, as well as right of possession and possibility of interest, is taken out of the bankrupt and vested in the assignees, yet that the fruits of a man's own invention do not pass. It is true that the schemes which a man may have in his own head before he obtains his certificate, or the fruits which he may make of such schemes do not pass, nor could the assignees require him to assign them over, provided he does not carry his schemes into effect until after he has obtained his certificate. But if he avail himself of his knowledge and skill, and thereby acquire a beneficial interest which may be the subject of assignment, I cannot frame to myself an argument why that interest should not pass in the same manner as any other property acquired by his personal industry." Patent rights being therefore assignable by the voluntary act of the owner, and by act and operation of law, it followed that a court of equity could compel the defendant to assign them to a receiver, to be sold and applied to the satisfaction of judgments against him, and the Supreme Court affirmed the order of the Special Term. "If," said the

court, "the use of a monopoly which such a grant confers is not sufficiently productive in the hands of the inventor to pay his debts, the privilege bestowed, being a right of property, as declared by Chief Justice Taney, should be transferred to the person designated by law, and sold for the benefit of the creditor. It would be marvelous, if not unjust, perpetuation of the ideal, if an inventor, having obtained a patent, thus divulging his secret and at the same time acquiring a property in it for practicable purposes, should be permitted to hold it unused against his creditors, until, either by compromise or the lapse of time, his obligations should be discharged; and this too although it might be one which, by assignment, or upon manufacture of the thing invented, would readily yield enough to pay all existing liabilities."

The case of Campbell v. James, decided May 1, 1880, in the United States Circuit Court of New York, to which we referred in the argument, is not at all in conflict with the authority of Byrnes v. Morgan. This case arose out of a bill of equity in which the defendant was chargeable with the infringement of a patent claimed to be owned by the plaintiff as assignee; and the principal questions involved in the case were the validity of the assignment alleged to have been made by the owner, and the right of the plaintiff under it to recover as well for the infringement before the assignment to him as for that after. There is nothing in the case which involves the power of a State court in equity to compel the assignment of a patent according to the act of Congress for the benefit of judgment creditors of the owner. Of course the United States courts have jurisdiction of any questions which arise as to the title itself; but as the thing itself is not exempted from seizure and sale by the laws of the State, we think, upon principle and authority, that the order of the court below was correct. Order affirmed.

UNITED STATES SUPREME COURT AB

STRACT.

CONSTITUTIONAL LAW-STATE LAW IMPAIRING CONTRACT-ALTERATION OF MUNICIPAL CHARTER SO AS TO PREVENT TAXATION TO PAY CITY DEBT-MANDAMUS.

"

The city of New Orleans issued its bonds in aid of a railroad. These bonds not being paid, plaintiff, the holder for value, of some of them, obtained judgment for their amount against the city. At the time of the issue of the bonds and of the judgment, the city was by its charter invested with "all the powers, rights, privileges and immunities incident to a municipal corporation and necessary for the proper government of the same." There was in the ordinance providing for the issue, no provision for the payment of the bonds by taxation, though there was such a provision for the payment of interest on them. In 1876 the Legislature of Louisiana enacted that only one and one-half per cent tax per annum should be levied upon the assessed value of the taxable property in the city, and provided for the exchange of the outstanding liabilities of the city for bonds which were to be paid in the future at uncertain times to be determined by the drawings of a lottery. Creditors who did not accept such bonds for their claims were cut off from payment. Held, that this statute was invalid as against plaintiff's judgment as impairing the obligation of a coutract, and that mandamus would issue from the Federal courts to compel the city authorities to levy a tax to pay such judgment. It is true that the power of taxation belongs exclusively to the legislative department, and that the Legislature may at any time restrict or revoke at its pleasure any of the powers of a municipal corporation, including, among others, that of taxation, subject, however, to this qualification, which attends all State legislation, that its action in that respect shall

is a rule of the common law that where there is any defect or omission in a pleading, whether in substance or form, which would have been fatal on demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively stated or omitted, and without which it is not to be presumed that the judge would have directed the jury to give the verdict, such defect or omission is cured. 1 Wm. Saund. 228. Or as it has been tersely put, a verdict cures a defective statement of a title or cause of action, but not the statement of a defective title or cause of action. 1 Wm. Saund., 228 c, note. Judgment of U. S. Circ. Ct., W. D. Michigan, affirmed. Township of Lincoln v. Cambria Iron Co. Opinion by Bradley, J. [Decided April 18, 1881.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

NOT

APPURTENANCES - WATER RIGHT IN GROSS APPURTENANT TO LAND WHEN IT PASSES WITH LAND. A water right, granted in gross, does not become technically appurtenant to land and a mill upon and for which it is subsequently used by the grantee thereof; but where such water-power is taken and applied to run a mill belonging to the owner of the power, and afterward, while the water-power is so being used, the owner conveys the premises by metes and bounds without mentioning the water right, the right may pass therewith, as parcel thereof, if such appears to have been the intention of the parties. In 1864 a water right was granted by the owner of the basin at Oregon City, in gross, and in 1866 the same was taken and applied to the use of a paper mill and machine shop on block 2, in said town; and in 1867, the same being the property of the owners of the water-power, they converted it into a flour mill and applied such water-power to the use thereof, continuously and exclusively, until 1878, when the owner of the mill and power conveyed the mill, describing the property by metes and bounds only, and without any express mention of said water right, to secure a loan of $20,000, payable in two years, with interest at the rate of one per cent per month; the said property, including said water right being then worth not to exceed $25,000, of which sum the water right was worth one-third. Held, that upon the facts and circumstances of the case, it satisfactorily appeared that it was the intention of the parties that the water right should pass with the land and mill, and being then used in connection therewith, it did so pass as parcel thereof. Hart v. Curtis, 7 Metc. 94; Linthicum v. Ray; 9 Wall. 242; Ackroyd v. Smith, 16 C. B. 184; Dewitt v. Harvey, 4 Gray, 487; Garrison v. Rudd, 19 Ill. 558; Goodrich v. Burbank, 12 Allen, 459; Nicholas v. Chamberlain, 3 Cro. 121; Whitney v. Oiney, 3 Mas. 280; United States v. Appleton, 1 Sum. 500; Thayer v. Payne, 2 Cush. 327; Strickler v. Todd, 1 S. & R. 63. 13 Am. Dec. 649; Coolidge v. Hager, 43 Vt. 9; 5 Am. Rep. 256; Sheets v. Selden, 2 Wall. 186. U. S. Circ. Ct., Oregon, April 6, 1881. Bank of British North America v. Miller. Opinion by Deady, J.

CARRIER -STATUTORY CONSTRUCTION- BAGGAGE NOT MERCHANDISE. — The baggage of passengers is not " merchandise" within the meaning of U. S. R. S., 14282, exempting the owners of vessels from liability for the loss of merchandise in case of fire occurring without their design or neglect. U. S. Dist. Ct., E. D. Michigan, April 4, 1881. The Marine City. Opinion by Brown, D. J. CONTRACT BY RAILROAD COMPANY TO FURNISH UNNECESSARY ACCOMMODATIONS TO ONE EXPRESS COMPANY INVALID.- A contract to furnish daily such * Appearing in C Federal Reporter.

an excessive and unnecessary amount of space; in the cars of a railroad company, for the transportation of the express matter of any one person or corporation, as will disable such railroad from serving others equally entitled to be served in the same manner, is illegal and void. Such a contract must be so framed as to adjust the rate of compensation to the number of persons and quantity (and perhaps quality) of matter transported, and to the length of the haul, and so as not to discriminate in favor of one or more companies or persons doing an express business, against another or others engaged in a similar business. U. S. Circ. Ct., N. D. Texas, March 22, 1881. Texas Express Co. v. Texas & Pacific Railway Co. Opinion by McCormick, D. J.

JURISDICTION - -COEXISTING SUITS INVOLVING SAME MATTER IN STATE AND FEDERAL COURTS. Where two suits, involving to a great extent the same subject-matter, are brought respectively in a State and Federal court, that court whose process is first served obtains jurisdiction of all questions which legitimately flow out of the subject-matter of the case. U.S. Circ. Ct., N. D. Illinois, March 23, 1881. Union Mutual Life Ins. Co. v. University of Chicago. Opinion by Drummond, J.

MARITIME LAW-GENERAL AVERAGE-DECK LOAD ENTITLED TO CONTRIBUTION. - If a deck load is jettisoned for the common benefit, the owners are entitled to a general average contribution for the loss sustained, although the shipper and master both agreed that the cargo should be carried on deck. Gould v. Oliver, 4 Bing. N. C. 140; Milward v. Hibberts, 3 Ad. & El. 121; The Delaware, 14 Wall. 602; Johnson v. Chapman, 19 C. B. (N. S.) 563; The Watchful, 1 Br. Ad. 469. U. S. Dist. Ct., New Jersey, April 8, 1881. The Schooner Mary & Eva. Opinion by Nixon, D. J.

SALVAGE ONE TAKING VESSEL LEFT ALONE BUT NOT ABANDONED, NOT ENTITLED TO. - If a vessel be found, though with no one on board, under such circumstances that the persons assuming to be salvors knew, or ought to have known, that their services were not desired, and they take possession with intent to supplant the master and owners in giving her relief, they have no claim for compensation. Unless a vessel has been utterly abandoned, and is in contemplation of law a derelict, even bona fide salvors have no right to the exclusive possession, and are bound to give up charge to the master on his appearing and claiming charge. In this case a stranded vessel, laden with a valuable cargo, was left but not abandoned by the master, having been placed in charge of an agent until he could return in another vessel to recover both the cargo and wreck. Held, that such vessel and cargo could not be taken possession of by a stranger who was fully advised of these facts and knew that the master was then on his way in another vessel to take possession. Held, further, that the mere fact of placing a man on board with the object of anticipating and supplanting the master, would not entitle such stranger to a share of the property which was subsequently recovered by the unaided efforts of the master. Tyson v. Prior, 1 Gal. 133; The Aquila, 1 C. Rob. 37-41; The Bee, 1 Ware, 336; The Cosmopolitan, 6 Not. Cas. Suppl. 17; The Barefoot, 1 Eng. L. & Eq. 661; The India, 1 Wm. Rob. 409; The Lovett Peacock, 1 Lowell, 143; Clarke v. Brig Healey, 4 Wash. 656; The Upnor, 2 Hagg. 3; The Island City, 1 Black. 126; The Champion, Br. & Lush. 69. U. S. Dist. Ct., California, March, 10, 1881. The Bark Cleone. Opinion by Hoffman, D. J.

IOWA SUPREME COURT ABSTRACT. CONSIDERATION

- HOLDER FOR VALUE-EXTENSION OF TIME OF PAST DUE DEBT

NOTICE - MISDESCRIP

TION OF LANDS MORTGAGED.-Y. made a mortgage

to a bank upon lands described to be in range 42, whereas they should have been described to be in range 43. He afterward mortgaged the lands by a correct description to P. to secure a note payable one day after the date thereof, given for an antecedent debt that was due. Held, that P. was a holder for value, so as to render his mortgage paramount to the right of the bank to have its mortgage reformed so as to apply to the land intended. An extension of one day might, under some circumstances, be of great advantage to the debtor or of great disadvantage to the creditor. It was held in Harlan v. Harlan, 20 Penn. St. 303, that a very slight advantage to one party, or a trifling inconvenience to the other, is a sufficient consideration to support a contract. In Sykes v. Lafferty, 27 Ark. 407, it was held that the waiver of a legal right is a sufficient consideration to support a contract. In 1 Jones on Mort., § 457, it is said: "The giving of further time for the payment of an existing debt by a valid agreement for any period, however short, is a valuable consideration, and is sufficient to support a mortgage as a purchase for a valuable consideration." The same doctrine was enunciated in Cary v. White, 52 N. Y. 138, the court saying: "If there was an extension of time for a single day by a valid agreement, as a consideration of the mortgage, there was a valuable consideration within the rule." See, also, Drury v. Fay, 14 Pick. 326; Boyd v. Frieze, 5 Gray, 553; Wormer V. Waterloo Agric. Works, 50 Iowa, 262. Sullivan Savings Institution v. Young. Opinion by Adams, C. J.

WAGON -LIEN IN LEASE. A lease of retail grocery store covenanted that the rents reserved shall be a perpetual lien on any and all goods, wares, merchandise, now in, or hereafter to be put in, on, or about said building, whether the same be exempt from execution or not." Held, not to include horses, wagons and harness used in connection with the business, but kept at a stable several blocks from the store, and upon separate property, though frequently standing in front of the store. It is said in Burrell's Law Dictionary that the word "goods" strictly seems to be applicable only to inanimate movables, being in this respect less comprehensive than chattels, which include animals. It is further said that the term "merchandise" is usually if not universally limited to things that are ordinarily bought and sold the subjects of commerce and traffic. The fact that a thing is sometimes bought and sold is no proof that it is merchandise. The construction of these terms depends largely upon the connection in which they are employed. In the statute of frauds it is said they comprehend all corporeal movable property, but not notes, bills, etc. Benjamin on Sales, § 111; Vawter v. Griffin, 40 Ind. 593; Whitmore v. Gibbs, 4 Foster (N. H.), 488. Under the importation laws it has been held that when horses are brought into this country for use or sale they would be included in the term "merchandise," as used in the act; but if they are mere instruments of prosecuting a journey they would not be so included. United States v. One Sorrel Horse, 22 Vt. 655. In the case of Curtis v. Phillips, 5 Mich. 112, the following provision was contained in a chattel mortgage: "All the goods of different varieties and kinds in the store of said first party at," etc. An iron safe was kept in the store for use in the business, but not for sale. The question was whether the safe was included in the mortgage. The court says: "The term 'goods,' when used in contradistinction to real estate, would doubtless include all kinds of movable personal property, and even bills, notes, certificates of stock, etc. But it cannot be supposed to have that extent of meaning in the case of this

chattel mortgage. The question here is of intent, and we think it quite clear that when a merchant speaks of the goods in his store he must generally be understood to have reference only to the merchandise and commodities kept on hand for the purpose of sale, unless there be some particular reason, which does not appear in this case, to give the term a broader signification. This certainly is the popular sense of the term in this country when we speak of a merchant's goods in his store. The case concedes that the safe was not kept for sale in the store, but for his own private use, and we are therefore of opinion that it was not the intention of the mortgagor to include the safe in the mortgage as a part of the goods, and that the mortgage, when taken in connection with the facts found, cannot be so construed as to include it." This reasoning is directly applicable to the case at bar. Van Patten v. Leonard. Opinion by Day, J. [Decided March 24, 1881.]

MORTGAGE FOR PURCHASE-MONEY ADVANCED BY

THIRD PERSON PRIOR TO PREVIOUSLY RECORDED MORTGAGE BY PURCHASER ON SAME PROPERTY. — A. mortgaged his lands to B. The land was sold for nonpayment of taxes to C., who took title through a tax deed. Thereafter A. purchased the lands from C., who conveyed the same to A., D. advancing the purchasemoney. To secure this purchase-money A. executed a mortgage to D. Held, that the mortgage to D. was prior to that to B. The law is well settled that a mortgage for purchase-money, made at the time of the conveyance of the property, is entitled to preference over previous judgments against the purchaser, and the same equitable considerations which demand that a purchase-money mortgage shall be entitled to priority over other liens, prior in point of time, require that if a third person advances the purchase-money and takes a mortgage from the purchaser he should be protected the same as though the mortgage were executed to the vendor; and such seems to be the rule of the authorities. In Clark v. Munroe, 14 Mass. 351, where a husband received a conveyance of land in fee, and at the same time mortgaged it to a third person, who furnished the consideration for the deed, it was held that the widow of the grantee in the deed had no right to dower as against the mortgage. See, also, Kittle v. Van Dyck, 1 Sandf. (N. Y.) 76; Adams v. Hill, 9 Foster (N. H.), 202; 4 Kent's Com. 39. In Jackson v. Antrim, 15 Johns. 477, and in Haywood v. Nooney, 3 Barb. 645, it was held that where a purchaser of land at the same time he receives a conveyance executes a mortgage to a third person, who advances the purchase-money for him, such mortgage is entitled to the same preference over a prior judgment as it would have had if it had been executed to the vendor himself. In Haywood v. Nooney it is said: "In its legal effect it is the same as though the purchaser had executed his mortgage to the vendor for the purchase-money and he had assigned it to the party advancing the money. In Curtis v. Root, 20 Ill. 53, where it was held that a mortgage for the purchase-money of land, executed simultaneously with the deed, took precedence of a judgment against the mortgagor, whether the mortgage was to the vendor or to another who actually advanced the means to pay the purchase-money, it is said: "In point of right and principle it can make no difference whether the mortgage is given to the vendor for the purchasemoney, or to another who actually advances the means to pay the purchase-money to the vendor." These authorities seem to us to enunciate an eminently just rule, and the facts of this case bring it within the same principle and reason. There can be no difference in principle between the lien of a prior mortgage, which lien was lost by an overriding tax title, or the lien of a mortgage upon land which the mortgagor does not own, but afterward acquires, and the lien of a prior

judgment. rock, J.

[Decided Dec. 14, 1880.]

MISSOURI SUPREME COURT ABSTRACT.*

CORPORATION -ONE HOLDING STOCK IN PLEDGE LIABLE AS STOCKHOLDER IF ACTING AS SUCH.-One may render himself liable as stockholder in a corporation as well by his conduct in respect to the stock of the corporation as by formal subscription and acceptance of stock. Accordingly, where defendants advanced money to a corporation, and to secure the advances received from the corporation a certificate for a majority of its capital stock, which was absolute and unconditional on its face, but was to be held by them "in trust" as declared by a resolution of the board of directors, or "in escrow," as it was expressed in an entry on the stock book of the corporation; and while so holding the stock defendants voted it at two elections, and thus elected the directors and other officers, and thereby obtained complete control of the corporation. Held, that they were estopped to deny that they were stockholders, and were liable as such, both to the corporation and its creditors; and this, so far as the creditors were concerned, whether they be

came such before defendants had so treated the stock or not. Griswold v. Seligman. Opinion by Sherwood, C. J.

DOMICILE OF ORPHAN INFANT UNDER GUARDIANSHIP-APPOINTMENT OF GUARDIAN. - The domicile

of an orphan infant under fourteen years of age is not changed by the act of his guardian in removing him from the county where his parents lived and died to the home of the guardian in another county, and his residence there. Upon the death of such a guardian, while the child is still under fourteen, his successor should be appointed by the probate court of the

former and not of the latter county. Ex parte Bartlett,

- An

4 Bradf. 224; Schouler, Dom. Rel. 452; Lacy v. Williams, 27 Mo. 280; Anderson v. Anderson, 42 Vt. 350. Marheineke v. Grothaus. Opinion by Naptou, J. EVIDENCE -EXEMPLIFIED COPY OF PATENT. — exemplification of the record of a patent from the United States showing that the patent was signed by the President, by his initials, and countersigned by the commissioner of the general land office, by his initials, is admissible in evidence as a copy of the patent. McGarrahan v. Mining Co., 96 U. S. 316. Briggs v. Helmstrong. Opinion by Napton, J.

PRICE OF ARTICLE

GIFT CAUSA MORTIS - OF SOLD.-One C., in anticipation of his own death, sold a carriage, agreeing with the purchaser that the price was to be paid in farm produce to his (C.'s) wife. C. having died, held, that his widow, and not his executor, was entitled to the benefit of the sale. See 1 Bish. Mar. Wom., §§ 231, 714; Clark v. McGuire, 16 Mo. 302; Rogers v. Gosnel, 51 id. 467. Scruggs v. Alexander. Opinion by Norton, J.

NOTICE-KNOWLEDGE OF ATTORNEY AS AFFECTING CLIENT. Knowledge acquired by an attorney while acting for one client will not affect another client for whom he is acting at the same time, in a different case. Ford v. French. Opinion by Norton, J.

NUISANCE- USE OF PREMISES FOR BROTHEL― DAMAGES. Where the owner knowingly permits a brothel to be established and maintained in his house, which adjoins a tenement of another, by reason of which the latter's tenants leave, and his property is depreciated in value, the former is liable to the latter for the special damage thereby caused him, over and above the wrong and injury done to the general public. In * To appear in 72 Missouri Reports.

the selling value of the property and the loss of rent occasioned by such nuisance. See Givens v. Van Studdiford, 4 Mo. App. 498. Givens v. Van Studdiford. Opinion by Hough, J.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

EQUITABLE

JANUARY 1881.

ACTION -TO CANCEL PROMISSORY NOTE ON GROUND AVAILABLE AS DEFENSE AT LAW, WILL NOT, IN ABSENCE OF FRAUD, ETC., LIE AFTER SUIT AT LAW COMMENCED - EVIDENCE.- In an action in equity the bill set forth that plaintiff gave defendant his promissory note without consideration, and asked that defendant be restrained from prosecuting a suit at law commenced for the collection of the note, and that the same be surrendered to plaintiff, etc. There was no allegation of fraud, accident or mistake. Held, That the action was not sustainable. So far as the bill sets up a want of consideration, it states a defense which can be availed of as effectually in the pending suit at law as in this suit in equity. Slade v. Hood, 13 Gray, 99; Corliss v. Howe, 11 id. 125. See, also, Hodgkins v. Moulton, 100 Mass. 309. It is well settled that the rule which excludes parol evidence when offered to change an unconditional written promise into a conditional or qualified undertaking, is applied with the same force and effect both in law and equity. There is a ground of equity jurisdiction which supports a bill brought for the purpose of protecting a plaintiff against an invalid contract in the possession of a defendant, when the invalidity is not apparent on the face of the instrument, and when there is danger that the evidence to support a defense to it in a court of law may be lost by delay of the other party to prosecute his claim. See Hamilton v. Cummings, 1 Johns. Ch. 517. Whatever may be the precise limits of this jurisdiction, however, it is plain that the present case is not brought by proper allegations within it. A charge that the defendant is now proceeding to enforce his note in a suit at law, is entirely inconsistent with the charge that by his unreasonable delay there is danger to the plaintiff of the loss of evidence necessary to a legal defense. Fuller v. Percival, 126 Mass. 381. When this element does not exist, and the defense is one which may be made equally effectual in a suit at law, it cannot be said that the plaintiff is without a plain, adequate and complete remedy. Anthony v. Valentine. Opinion by Colt, J.

MORTGAGE - HOLDER OF PRIOR YIELDING PRIORITY WHEN NOT ENTITLED TO HAVE PRIORITY RESTORED

- EQUITABLE ACTION.-L. made a mortgage on his estate to C. in 1875, and the same was recorded that year. This mortgage was erroneously dated 1870. In 1876 L. made a mortgage on the estate to S., which was recorded that year. In 1877, in pursuance of an agreement between L. and C. for the purpose of correcting the erroneous date, L. made to C. a mortgage on the estate of the date of 1877, which was at once recorded, and C. discharged the mortgage of 1875. The first mortgage to C. and the second one to S. were given for value. C. had no actual knowledge of the mortgage to S. at the time he discharged his prior one. There was no fraud or misrepresentation. After C. had notice of the mortgage to S. he entered under his subsequent one for condition broken and sold the estate, which did not bring enough to satisfy the debt, whereupon he obtained a judgment against L. for the deficiency, and issued an execution thereunder, which was returned unsatisfied, L. having no property. He thereafter brought action, asking the court to restrain the enforcement of the mortgage to S., to vacate the discharge of his own first mortgage upon his relinquish