3. A suit for the foreclosure of a mortgage is peculiarly an equity proceeding;
and when a District Court gains jurisdiction of the case for the purpose of
foreclosure, it has the right to give full relief; and for this purpose to de-
cree and execute a sale of the mortgaged premises. But when the claim
has been presented to the administrator and Probate Court, and allowed, it
is otherwise. Ib.

4. The settled doctrine of equity now is, that a mortgage is a mere security for
a debt, and passes only a chattel interest; that the debt is the principal and
the land the incident; that the mortgage constitutes simply a lien or incum-
brance; and that the equity of redemption is the real and beneficial estate
in the land, which may be sold and conveyed by the mortgageor in any of
the ordinary modes of assurance, subject only to the lien of the mortgage.
McMillan v. Richards, 365.

5. This equitable doctrine has been adopted in this State, and asserted, directly
or indirectly, in repeated instances by this Court. Ib.

6. The mortgage being a mere security for a debt, it must follow, that the pay-
ment of the debt, whether before or after default, will operate as an extin-
guishment of the mortgage. Ib.

7. The original character of mortgages has undergone a change. They have
ceased to be conveyances except in form. They are no longer understood
as contracts of purchase and sale between the parties, but as transactions
by which a loan is made on the one side, and security for its repayment fur-
nished on the other. They pass no estate in the lands, but are mere securi-
ties; and default in the payment of the money secured does not change
their character. Ib.

8. Proceedings for the foreclosure of mortgages, in the sense in which the
terms are used in England, and in several of the States, by which the mort-
gageor, after default, is called upon to repay the loan by a specified day, or
be forever barred of his equity of redemption, are unknown to our law.
The owner of the mortgage in this State can in no case become the owner
of the mortgaged premises except by purchase upon sale under judicial de-
cree, consummated by conveyance. Ib.

9. A foreclosure suit, by our law, results only in a legal ascertainment of the
amount due, and a decree directing the sale of the premises, for its satisfac-
tion, the surplus, if any, going to subsequent incumbrancers or the owner
of the premises, and execution following for any deficiency. Ib.

10. The statutory right of redemption is equally applicable to sales under de-
crees in mortgage cases as to sales under ordinary judgments at law. Ib.
11. The estate of a mortgageor and of a judgment debtor after sale, stand upon
the same footing, and the insertion in the decree of a clause foreclosing the
equity of redemption, is a useless formula, which cannot enlarge the effect
of the decree, or any rights of the mortgagee under it. Ib.

12. The decisions as to the estate of the judgment debtor after sale, become,
therefore, authorities for determining the estate of the mortgageor after sale
under the decree; and from them it will be found that the estate must re-
main in the mortgageor until a consummation of the sale by conveyance, as
it does in the judgment debtor, and that the conveyance when executed will
take effect, in the one case, from the date of the mortgage, as it does in the
other, from the time the lien of the judgment attached. Ib.

13. It follows, that a creditor of the mortgageor obtaining a judgment after sale
under the decree of foreclosure, but before the execution of the conveyance
thereunder, acquires a lien on the estate entitling him to redeem. Ib.

14. Such lien and right to redeem would be lost, where a prior judgment had been obtained by a third party against the mortgageor, under which his estate subject to the mortgage had been sold, and the time for redemption had elapsed, and a conveyance had been executed. Ib.

15. The legal estate exists in the judgment debtor after expiration of the time to redeem, until execution of the conveyance to the purchaser. Ib. 16. The purchaser at an execution sale, before conveyance to him, has a right to redeem the property sold on the enforcement of a prior lien; after conveyance to him he has the same right as successor in interest to the debtor or mortgageor. Ib.

17. In this State a mortgage is not treated as a conveyance, vesting in the mortgagee any estate in the land, either before or after condition broken. It is a mere security for the debt, and default in the payment does not change its character. Nagle v. Macy, 426.

18. Possession by the mortgagee cannot abridge, enlarge, or otherwise affect his interest, nor convert that which was previously a security into a seizin of the freehold. Ib.

19. If the mortgage confers no right of possession, entry under it can give none. It does not change the relation of debtor and creditor, or impair the estate of the mortgageor, but leaves the parties exactly as they stood previous to such possession. Ib.

20. The character of a mortgage, as security, is in no way affected by the fact that judgment for the debt has been obtained. Ib.

21. The debt and mortgage are inseparable. The latter must follow the former. As distinct from the debt, the mortgage has no determinate value, and is not a subject of transfer. Ib.

22. Where the mortgageor dies after decree of foreclosure entered, and no administration is had upon his estate: It seems, that there is no reason why the execution of the decree should be stayed. The suit is in the nature of a proceeding in rem. The decree binds the specific property, and the case is within the reason of the proviso in section one hundred and forty-one of the Act concerning the estates of deceased persons. Ib.

23. The title of a purchaser under a sale on a decree of foreclosure, cannot be impeached in a collateral action, for irregularity in the proceedings on the sale. Ib.

24. PER BURNETT, J.-A deed and defeasance, to constitute a mortgage, must be between the same parties. Low v. Henry, 538.

25. Parol evidence is not admissible to show that a deed, absolute on its face, was intended as a mortgage, except in cases of fraud, accident, or mistake in the creation of the instrument itself.

Ib.

26. In the absence of a mutuality of obligation, it must appear, by apt and express words in the instruments, that it was the intention of the parties that the transaction should amount to a mortgage. Ib.

27. A mortgagee who is also a trustee, is as strictly bound to execute his trust faithfully as he would be were he not a creditor, but acting for the benefit of another cestui que trust. Gunter, Executor, v. Janes, Guardian, 643.

NEW TRIAL.
See JURORS, 1.

1. A party failing to give notice, in time, of his intention to move for a new trial, or to file his statement in time, waives his right to move for a new trial. Caney v. Silverthorn, 67.

2. On motion for a new trial, the filing of a counter-statement is a waiver of
objections to want of notice of the intention to move for a new trial. Wil-
liams et al. v. Gregory et al., 76.

3. When it appears from the bill of exceptions signed by the judges, that the
motion for a new trial was heard on statement, counter-statement, and
affidavits, it cannot be objected that the statement was not settled. Ib.

4. Where a party appears and argues a motion for a new trial, he cannot after-
ward object that the statement was not agreed to by him, and that it was
not settled by the Judge. Dickinson v. Van Horn, 207.

5. In a statement for a new trial the evidence may be simply referred to, and
need not be set out in the statement itself. It is not so in a statement on
appeal, in which the evidence, if relied upon, must be set out. Ib.

6. Where the evidence is not set out in a statement on appeal, this Court will
presume that the Court below had good reason for granting a new trial. Ib.

7. The County Court has a right to grant a new trial. Ib.

8. A failure to file a statement, setting forth the grounds upon which a party
intends to rely, on motion for a new trial, operates as a waiver of the right
to the motion. Wing v. Owens, 247.

9. Where the affidavits used in support of a motion for a new trial are not set
forth in the record on appeal, the party moving is deprived of all ground of
error based on the affidavits; but the omission does not affect his right to
raise the question as to errors apparent upon the face of the record. Bran-
ger & Driard v. Chevalier, 353.

10. Where a slip from a newspaper was handed by a deputy sheriff to the jury,
during the progress of the trial, containing matters relating to the trial, but
not in evidence, and was perused by them, and the Court subsequently,
upon discovery of the fact, instructed the jury that the slip was not in evi-
dence, and that it should be wholly disregarded by them, and it appeared
that the perusal could not, from the character of the matter contained in
the slip, have prejudiced the losing party: Held, not to be a ground for a
new trial. Thrall v. Smiley et al., 529.

11. The mistake of counsel as to the competency of a witness, is no ground for
granting a new trial. Packer v. Heaton, 568.

NOTICE.

See REFEREE, 1, 2, 3, 4; JUDGMENT, 8; PROMISSORY NOTE, 8; SHERIFF'S SALES, 1.

OFFICIAL BONDS.

See SHERIFFS, 3, 4, 5, 6, 7, 8, 9.

1. The sureties upon the official bond of an officer are only responsible for
the official acts, and not for private debts. Hill v. Kemble et al., 71.

ORDER FOR THE PAYMENT OF MONEY.

1. L. advanced to H. $476, and received from H., for collection, an order for
the amount upon a party indebted to him. The order not being collected,
L. returned it to H. and took H.'s note for the amount advanced. In a suit
on the note, H. set up as a defense, laches on the part of L., in not present-
ing the order, by means of which the debt was lost: Held, that if there
were any laches, they were waived by the execution of the note. Leonard
v. Hastings, 236.

2. A drew an order on B, in favor of C, for two hundred and six dollars and fifty cents; C presented the order to B, and he paid twenty-two dollars and fifty cents thereon, and the amount was receipted on the back of the order in the handwriting of B, and signed by C: Held, that this was not an acceptance. Bassett v. Hines, 260.

3. The receipt is evidence that B owed only that sum and paid it, and would not imply acceptance of the whole amount. Ib.

PAROL EVIDENCE.

See MORTGAGES, 25, 26.

1. Parol evidence of the contents of a written contract between the alleged husband and wife to live together without marriage is inadmissible, except after due notice to produce the contract, and refusal to do so. Poole and Wife v. Gerrard, 593.

2. But where such evidence is offered simply to prove the fact that a writing was made in reference to the matter in controversy, without stating the contents of the same, it is admissible. Ib.

PARTNERSHIP AND PARTNERS.

See PROMISSORY NOTE, 6.

1. The filing of a bill by one partner against his copartners for a dissolution and account, and praying for an injunction and receiver, and an appointment of a receiver by the Court, does not prevent a creditor from proceeding by attachment, aud gaining a priority over other creditors, until a final decree of dissolution and order of distribution. Adams v. Woods & Haskell, T. A. Lynch et al., Intervenors, 24.

2. It is only in cases of insolvency that the equitable rule for a pro rata distribution will apply, and then as of necessity. If the firm be solvent, a creditor whose claim is due cannot be placed on a par with others whose claims are not yet due, or who have been less diligent in securing claims already due. İb.

3. Funds in the hands of a receiver, in a suit for dissolution, are therefore subject to attachment at any time before a final decree of dissolution and distribution. Ib.

4. The debts of a partnership must be discharged from the joint property, before any portion of it can be applied to the individual debts of the partners. Chase v. Steel et al., 64.

5. The fact that a partner's interest is mortgaged for his individual debt, for the purchase money of his share in the partnership, is immaterial. He can only mortgage that which he has, viz.: a share, subject to partnership debts. Ib.

6. A surviving partner being entitled to the possession and control of the partnership effects, can proceed directly in the District Court to obtain the control, and to have a partition of the real estate belonging to the partnership, but standing in the name of his deceased partner. Gray v. Palmer et al., 616. 7. A partnership may exist in the purchase and sale of lands, but such a partnership can only exist where the contract is reduced to writing. It is not necessary that the partners should be jointly concerned in the original purchase, where the interests of the partners are afterward mingled; but they must be jointly concerned in the future sale. Ib.

8. It does not matter in whose name the real estate is held; he is only a trustee for the partnership; and for the purpose of disposal and distribution, it is to be treated as personal estate. Ib.

9. This being the true character of partnership real estate, the surviving partner has an equitable lien upon it for his indemnity against the debts of the firm, and for the balance due him. Ib.

10. There may be a dormant partnership in the purchase and sale of real estate as between the partners themselves, but as between the partners and third persons, the law in regard to dormant partners will not apply. Ib.

11. Parties may form a universal partnership, but the same would not be held to exist, unless the intention was clearly expressed. The evidence to establish such a partnership, after the death of one of the alleged partners, should be clear and full, and not subject to doubt. Ib. 12. It was necessary to file this bill, and make the administrator, the widow, and the infant, parties, to rebut the presumption of ownership on the part of the estate, arising from the fact that the real estate stood upon the record in the name of the deceased, and the administrator had possession of the personal property. These objects could only be accomplished by proceedings in the District Court, as the Probate Court did not possess the judicial means of giving relief. Ib.

13. A and B entered into an agreement in which it was stipulated that A should advance $12,000 for the purpose of putting up a brick house on property of B, held by lease, and B was to convey to A one half interest in the leased premises; the balance of the costs of the building was to be borne in equal proportion. When completed, B was to rent the same and pay over to A one-half of the rents. Building was erected at a cost of $48,000-$30,000 paid by A and $18,000 by B,-B conveyed one-half of premises to A: Held, that A and B were copartners. Laffan v. Naglee, 662. 14. And where one of two holders of the leasehold, holding in partnership, purchases the fee in his own name and with his own money, it enures equally to the benefit of the other, to which he becomes entitled on payment of his proportion of the purchase money. Ib.

15. And as the relation sustained by the tenant purchasing the fee, to his cotenant or partner, is one of confidence, the proof that the latter had waived his right must be clear, and the burden of proof rests upon the tenant purchasing. Ib.

PATENT.

See SWAMP AND OVERFLOWED LANDS.

PLACER COUNTY.

1. The special Act of the Legislature, approved April 4, 1857, fixing the compensation of the county clerk of the county of Placer at $3,000, was intended in lieu of all fees for services rendered the county. Mitchell v. Stoner, 203.

PLEADING.

See PRACTICE, 4, 5, 6; HUSBAND AND WIFE, 1; MARRIED WOMEN, 2.

1. There are but two forms in which a defendant can controvert the allegations of a verified complaint; first, positively, when the facts are within his personal knowledge, and second, upon information and belief, when they are not. Curtis v. Richards & Vantine, 33.

2. In no case can the allegation of a verified complaint be controverted by a denial of sufficient knowledge or information upon the subject, to form a belief. Ib.

3. The denial of any indebtedness, without a denial of any of the facts from which that indebtedness follows as a conclusion of law, raises no issue. Ib.