involved was executed. Both entered into and controlled this power of sale, and both must be considered together in arriving at the rule in such cases. Section 3 reads: "When a mortgage is given to secure the payment of money by instalments, each of the instalments, either of principal or interest, mentioned in such mortgage, may be taken aad deemed to be a separate and independent mortgage, and such mortgage for each of such instalments may be foreclosed in the same manner and with the like effect as if such separate mortgage was given for each of such subsequent instalments; and a redemption of any such sale by the mortgagor shall have the like effect as if the sale for such instalmeats had been made upou an independent prior mortgage. Section 4 reads: "In such case if the mortgaged premises consist of separate and distinct farms or tracts only, such tract or tracts shall be sold as are sufficient to satisfy the instalment or instalments then due, with interest and costs of sale; but, if such premises do not consist of separate and distinct farms or tracts, the whole shall be sold, and in either case the proceeds of such sale shall, after satisfying the interest portion, or instalment of the principal due, with interest and costs of sale, be applied toward the payment of the residue of the sum secured by said mortgage, and not due and payable at the the time of such sale, and if such residue does not bear interest, such application shall be made, with a rebate of the legal interest for the time during which such residue shall not be due and payable, and the surplus, if any, shall be paid to the mortgagor, his legal representatives or assigns." Section 3 gives a right of foreclosure when an instalment and not the whole debt is due, the same as though such instalment were a separate and independent mortgage. In the absence of any provison' qualifying this right or indicating how it should be exercised, or the effect of its exercise, it must be that a sale to satisfy the lien of one instalment would not affect the right to sell the same property again, to satisfy the lien of a subsequent one, in which case the sale would be only on account of the instalment for which it was made, and the surplus, after paying the instalment, costs and charges, be properly payable to the mortgager, as in case of an independent mortgage. Section 4, however, contemplates successive sales for different instalments only where the property mortgagel consists of separate and distinct farms or tracts, and a sale of all of them is not required to satisfy the amount due on the mortgage at the time of the first sales; and it also contemplates that whether the first sale be of a part or of the whole property, the entire interest mortgaged in a distinct and separate tract shall be sold, and the sale, although made when only an instalment is due, is made on account of the entire mortgage. The direction that upon such a sale, whether a part only or the whole of the mortgaged property be sold, the proceeds of the sale shall, after satisfying the interest portion or instalment of principal due, with interest and costs of sale, "be applied towards the payment of the residue of the sum secured by said mortgage, and not due and payable at the time of such sale," and that only the surplus, after paying the entire mortgage debt, shall be paid to the mortgagor, with a direction for rebate where such residue does not bear interest, shows this. The rule here laid down is the same as a court of equity would apply in case of foreclosure by suit, and has the same reason for it, to-wit: that, by the sale, the lien of the mortgage upon the tract sold, both for the part of the debt then due and payable and for the residue, is exhausted, and the lien transferred to the fund arising from the sale. Why, upon the foreclosure of a mortgage, should any part of the proceeds be applied to satisfy another separate and independent mortgage, the lien of which is no way affected by the foreclosure? The direction to apply the surplus towards payment of the part of the mortgage debt not yet due can be only on the theory that the sale does affect the lien as to such part, does remove it from the land sold, and leave the mortgagee only the surplus of the fund raised by the sale to look to for payment of the part of the debt not yet payable. Our conclusion is that, under a power of sale in a mortgage, payable in instalments, there can be but one sale of the same tract; that such sale, although made when only a part of the mortgage debt is due, is made on account of the entire mortgage and exhausts its lien, and that the proceeds of the sale must be applied-First, towards satisfaction of the amount then due on the mortgage debt, and costs of sale; second, if there be a surplus, to the part of the mortgage debt not then payable; and, third, if there be then any surplus it is to be paid to mortgagor, so that the security of this mortgagee, as against the land mortgaged, is gone, and he must look to the fund made by the sale. If out of this he can receive only the amount due and payable at the time of the sale, and the overplus must be paid to the mortgagor, then his security is cut down to security for the amount then due, and is lost to him as to the residue. The parties to the mortgage surely never intended any such result. Although the word "due" in the clause of the mortgage, “and out of the moneys arising from such sale to retain the principal and interest which shall then be due on said notes, together with all costs and charges, and pay the overplus, if any, to the said parties of the first part, etc., is usually employed in the sense of "payable" it is also sometimes used in the sense of "owing," without reference to a time of payment; and, as in the former sense, it would be inconsistent with the general purpose of the mortgage, to-wit: security of the whole debt, principal and interest, and might, in part, defeat such purpose, and in the latter sense is entirely consistent with such general purpose, and also with the rule in courts of equity, and with the statutory rule, the latter must be taken as the sense in which the parties used it. Judgment affirmed. THE STATE OF MINNESOTA ex rel. REBECCA HAMILTON, Relator, vs. M. MARVIN, Justice of the Peace, etc., Respondent. Filed December 30, 1879. The effect of section 2, c. 65, Gen. St., as amended by chapter 92, Laws 1868, is to require a justice of the peace to transact his judicial business in the town, city or ward for which he is elected, except that he may issue process in any place in his county, and may, in his discretion, for the convenience of parties make any process issued by him returnable, and may hold any court which he is by law authorized to hold, at any place appointed by him in a town adjoining the town for which he is elected, or a ward adjoining the ward for which he is elected, as the case may be, provided, the place so appointed is within his county. Certiorari. Yale & Bentley, for relator. J. W. Dyckson, for respondent. BERRY, J. Section 2, c. 65, Gen. St., as amended by chapter 92, Laws 1868, reads as follows: "Every justice of the peace shall keep his office in the town, city or ward for which he is elected, but he may issue process in any place in the county, and may, in his discretion, for the convenience of parties, make any process issued by him, either civil or crim F inal, returnable, and may hold his court at any place appointed by him, in a town or ward adjoining the town or ward in which he resides, provided the place so appointed be within his county." By what we deem to be the meaning of this section, a justice of the peace is required to transact his judicial business in the town, city or ward, as the case may be, for which he is elected, except that he may issue process in any place in his county, and may, in his discretion, for the convenience of parties, make any process issued by him, either civil or criminal, returnable, and may hold any court, which he is by law authorized to hold, at any place appointed by him, in a town, adjoining the town for which he is elected, or a ward adjoining the ward for which he is elected, as the case may be, provided the place so appointed is within his county. If this construction is correct, it follows that the defendant,' who was a justice of the peace of the town of Winona, had no authority to hold a court or render a judgdment in the city of Winona, no more than he would have to do the same acts in the county of Wabasha. The judgment against the relator is accordingly reversed. INDEX. ABATEMENT. See PLEADING. ABORTION. In the trial of an indictment for pregnancy and use of drugs or instru- Matters stated in amended abstract conflicting with original and not ACCOUNT. Where impeachment of an account is sought the errors must be spe- ACCORD AND SATISFACTION. Payment of part of claim is no consideration for a promise to forgive the ACKNOWLEDGMENT. Sufficient designation of officer taking. (Mich. 428.) 198. Proceedings in to establish disputed corner. (Iowa, 665.) 45. Held commenced without authority of plaintiff named. (Iowa, 121.) 531. Defence to an action for money had and received must be one cogni- ADMINISTRATION, LETTERS OF Issued by the proper probate court, cannot be objected to in a collateral Are prima facie evidence of every fact upon which the capacity and Where administrator buys a tax title with funds of the estate, held to Appeal will not lie from disallowance of certain items in account. What is sufficient publication of notice of administrator's sale. (Minn. Liability of, for interest on funds invested and not invested. (Iowa, Where the estate derives no benefit from the transactions of the admin- 715. Court may order the return into court of money withdrawn by an ADMIRALTY. The master of a vessel cannot be a party to the arrest of such vessel and |