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LIEN. VENDOR'S LIEN. Continued.

2. And if the subsequent purchaser sells such machinery, he will hold
the proceeds in trust for the benefit of the prior vendor, and equity will
subject the proceeds to the same uses for which the property was held

subject to a lien. Hammer v. Johnson et al. 193.
OF A LIEN UPON TWO FUNDS.

Rights of the party holding such lien. See MORTGAGES, 7, 8, 9.
CREDITOR'S LIEN AGAINST AN ESTATE.

Whether barred by lapse of time. See LIMITATIONS, 1 to 4.

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LIMITATIONS.
LAPSE OF TIME ASIDE FROM THE STATUTE.

1. Creditor of an estatewhen his lien is barred. In determining the
question, whether a creditor has waived his lien upon the property of an
intestate, by failing to pursue his remedy within a reasonable time, in the
absence of a legislative rule, each case must be left to depend largely
upon its own circumstances. Rosenthal, Admr., v. Renick et al. 202.

2. And in cases where the delay of the creditors is unexplained, and even
where the title is still in the heirs, the period of seven years from the
death of the intestate may be properly adopted, by analogies of the law,
as a bar to such liens. Ibid. 202.

3. And in many cases a much shorter limitation may be applied, to pro-
tect innocent purchasers against the secret lien. The facts of each case
must decide the limitation to be applied. Ibid. 202.

4. Where a person died in Ohio, having devised all of his real estate in
Ohio, Indiana and Illinois, to R., first to pay all of his debts, and then to
convey it to his son H., and subsequently such trustee and devisee died,
the devisee H. leaving a will, and administrators with the will annexed
were appointed in each of the States of Ohio and Illinois,-held, that the
lien of a creditor upon the property of the testator was not barred by his
failure to pursue his remedy within seven years after the death of tho
testator, it appearing that the property against which the lien was sought
to be enforced, and of which the devisee H. died seized, had never been
aliened by his devisee, nor any improvements made thereon by him, and

that the estate was still unsettled in Ohio. Ibid. 202.
LIMITATION ACT OF 1839.

Mortgagee cannot avail of the statute. See MORTGAGES, 12.

MARINE COURT OF NEW YORK.
IN THE MATTER OF NATURALIZATION.

Has no jurisdiction. See NATURALIZATION, 2.

MARRIAGE.
PROOF OF MARRIAGE.

1. What is sufficient. In a proceeding to revoke letters of administra-
tion which had issued to the widow of M. deceased, upon the ground, that,
at the time of her intermarriage with deceased, she had another husband,

MARRIAGE. PROOF OF MARRIAGE. Continued.

one W., then living,-held, that the proof, of such former marriage, consisting simply of general report to that effect, and of the fact of cohabitation together as husband and wife, with one or more children born to them, is not sufficient to establish it. Myatt v. Myatt, Admz., et al. 473.

2. While the presumption of law is always in favor of a marriage between parties cohabiting together as man and wife, yet such presumption may be rebutted. Ibid. 473.

3. Nor, in such case, will proof of her admissions that she was married to such other person, coupled with the fact of cohabitation as man and

wife, establish such former marriage. Ibid. 473. LEGALITY OF MARRIAGE.

4 Should not be determined in a collateral proceeding. The legality of the marriage ought not to be determined in a collateral proceeding to revoke letters of administration granted to the widow; other proceedings should be instituted, whereby the whole merits of the case can be fully investigated. Ibid. 473.

MARRIED WOMEN.
CONVEYANCE OF LAND OF THE WIFE.

1. The husband must join. The act of 1861, entitled "An act to protect married women in their separate property," does not empower a wife to convey her real estate without the consent and joinder of her husband in the deed, as required by section seventeen of our statute of conveyances. And although the act modifies during coverture the husband's estate by the curtesy, it does not enable the wife to divest him thereof, or prevent

its taking effect after her death. Cole v. Van Riper, 58. ESTATE OF THE HUSBAND IN THE WIFE'S LAND.

2. Estate during coverture. The estate during coverture which, at the common law, the husband held in the lands of the wife, would doubtless be held, under the act of 1861, to be substantially abolished, in cases where the estate did not become vested before the passage of the act. Ibid. 65.

3. As tenant by the curtesy. But the estate of the husband as tenant by the curtesy is not totally abolished by that act, though it is materially modified. Where no interest vested in the husband prior to the passage of the law, he has no control over the wife's lands during her life, nor has he an interest in them subject to execution ; but his estate as tenant by

the curtesy may take effect on the death of the wife. Ibid. 65. GIFT FROM HUSBAND TO WIFE.

4. Not embraced in the act of 1861. A gift from the husband to the wife is not embraced in the act of 1861, concerning the separate property of married women, as that act has reference only to property acquired by the wife through some source other than her husband. Manny v. Rizford, 132. DISTRIBUTION OF THEIR PERSONAL ESTATE.

5. And herein, of the rights of the husband, as administrator of his wife. See ADMINISTRATION OF ESTATES, 4, 5.

MARTIAL LAW.
WHAT CONSTITUTES.

And where it may prevail. See PERSONAL LIBERTY, 6 to 10.

MASTER IN CHANCERY.
NOTICE OF TAKING PROOF.

Whether sufficient. See NOTICE, 1.
MASTER'S REPORT.

Whether exceptions thereto necessary. See CHANCERY, 17.

MASTER AND SERVANT.
WHEN THE FORMER LIABLE.

For acts of the latter. See AGISTMENT, 1, 2.

MEASURE OF DAMAGES.

IN TRESPASS.

1. For personal injuries. In an action of trespass, for personal injuries, when the act complained of is without malice, vindictive damages cannot be given. Pierce v. Millay, 189.

2. In such case, full compensation for the pain and suffering, loss of time, expenses incurred for medical treatment, and compensation for the injury,

if permanent, is all that should be given. Ibid. 189. IN TRESPASS AGAINST AN OFFICER.

3. For levying upon and selling the property of plaintiff under execution against another. While it is true, as a general rule, that the value of property wrongfully sold on execution is the measure of damages sus. tained by the owner, still, that is not true except in cases where the purchaser bas obtained the property. Warner v. Ostrander, 356.

4. A rule of more general application is, that in cases not requiring punitive damages, the loss actually sustained is the true measure. Ibid. 356.

5. So, where the property of the plaintiff was levied upon and sold under an execution against another person, but remained in the possession of the owner, who sold it and received the benefit of the proceeds beyond the amount for which it had been sold on the execution, there being no circumstances connected with the levy and sale calling for punitive damages, the proper measure of damages in an action of trespass by the owner against the officer would be the actual damage sustained,– that is, the amount for which the property was sold on the execution. Ibid. 356.

6. Where goods are wrongfully levied upon. If the goods of one person are wrongfully levied on under an attachment against another, the statute does not contemplate that the rightful owner is to be permitted to recover only such a sum in damages as his property may have brought under a forced sale. Whitaker v. Wheeler, 440.

MEASURE OF DAMAGES. Continued.
IN TROVER.

7. For conversion of a note. In an action of trover and conversion for a note, the measure of damages, prima facie, is the sum due on the instru.

ment. American Express Co. v. Parsons, 312. IN AN ACTION ON THE CASE

8. Against an express company for loss of a note. In case, and other actions for wrongs, where there are no circumstances which authorize punitive damages, the true measure is the amount the plaintiff has really sustained. Where it appears that a note intrusted to an express company was lost through negligence, the injury is the same as if it had been converted, and the measure of damages should be the same. American Express Co. v. Parsons, 312.

9. Notwithstanding the company is prima facie liable for the sum of money due on the note, they have the right to establish, by any legitimate evidence, that the damages were less in fact. Should it appear that the maker was insolvent, or that there was a legal defense to the note, or other facts rebutting the presumption of loss, it will reduce the damages.

Ibid. 312.
SUIT ON SUPERSEDEAS BOND.

10. Liability of the sureties. The obligation of a surety upon a supersedeas bond, is limited to the prosecution of the writ of error with effect, and his undertaking is, that if the writ is not so prosecuted he will pay all resulting damages. Cook v. Marsh, 178.

11. In an action on such a bond, where it appeared that real and per. sonal property had been decreed to be sold, and the sale suspended by the supersedeas, the property in the mean time having deteriorated in value, the extent of the deterioration of the property would constitute the dam. ages, which the plaintiff would be entitled to recover. Ibid. 178.

12. And in such case, a claim by the plaintiff for the rents received by the defendant from the real estate, after the rendition of the decree, will not be allowed, plaintiff having no right by the decree, nor under the law, to its possession, or the rents thereof. Ibid. 178.

ON CONTRACT TO FURNISH CARS.

13. Measure of damages for breach thereof. In an action against a rail. road company for a failure to furnish passenger cars, as agreed upon, for an excursion, at a stipulated price, the measure of recovery would be the amount the plaintiff would have received as passage money, if the train had gone as proposed, less the amount agreed to be paid for the use of

the cars. Illinois Central Railroad Co. v. Demars, 292. FOR NEGLECT TO ASSIGN DOWER. See DOWER, 8, 9, 10.

MILITARY LAW.

WHAT CONSTITUTES. See PERSONAL LIBERTY, 6 to 10.

MISJOINDER OF PARTIES.

WHAT CONSTITUTES. See PARTIES, 9.
TIME FOR OBJECTING THERETO. See PRACTICE, 12.

MISTAKE.
REFORMING WRITTEN INSTRUMENTS.

1. A court of chancery will correct a written instrument, where clearly
made to appear that it was entered into and executed under mistake.
McCloskey v. McCormick et al. 336.

2. The fact that a party had brought an action at law upon the instru-
ment sought to be reformed, which was ineffectual by reason of the mis
take, and was therefore abandoned, will not be a bar to a suit in chancery
subsequently brought to correct the mistake. Ibid. 336.

MITIGATION OF DAMAGES. See DAMAGES, 1.

MORTGAGES.
WHAT CONSTITUTES A MORTGAGE.

1. Intention of parties governs. To ascertain whether a transaction
between parties amounts to a sale or a mortgage, courts of equity will
look beyond the mere forms with which it is clothed, and, although it be
a sale in form, if it clearly appears by proof to have been a loan or debt
and security for its payment, it will be treated as a mortgage. Dren,
Exr., v. Blake, Exr. 135.

2. When in form a sale - proof must be clear to change its character.
Where parties give to a transaction all the forms of a sale, the proof
must be clear that it was intended as a mortgage, in order to change its
character. Slight, indefinite evidence is not sufficient. Ibid. 135.

3. What will be considered a mortgage. T., desirous of entering certain
lands, applied to M., an agent of G., for the purchase of land warrants,
for such purpose ; whereupon an agreement was made between them,
whereby M. sold to him certain warrants, for which T. executed to him
his notes for the purchase price, the payment of which was secured by
entering the lands in the name of M., M. giving to T. his bond for the
conveyance of the same to him, upon the payment of the notes. T. failed
to pay the notes, and G., the principal, having died, M. quitclaimed the
lands to G.'s heirs. Subsequently, the premises were sold on execu-
tion against T., who was in possession, on a judgment in favor of J., and
B. redeemed from the sale, as a judgment creditor of T. On a bill to
redeem filed by B., held, that the transaction amounted to a sale of the
warrants, and the entry of the lands in M.'s name, was intended as a
security for the payment of the notes, and must be treated as a mortgage;
that M. held the land in trust for G.'s heirs, subject to T.'s equity of
redemption, and that the deed by him to them was without consideration,
and received by them merely as such heirs, and not as bona fide pur.
chasers; and that B. by his purchase under J.'s execution succeeded to all
of the rights of T. Ibid. 135.
37-44TH ILL.

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