payments by one of the makers before an action is barred do not affect the others; Parker v. Merrill, 6 Me. 47, holding declarations concerning facts transpiring previous to dissolution are admissible against all the members. Referred to in Greenleaf v. Quincy, 12 Me. 14, 28 Am. Dec. 146, holding admissions by a partner after dissolution were sufficient to take a case out of the statute; Shepley v. Waterhouse, 22 Me. 499, holding that a new promise by one of the several makers of a note revives the debt as to all; Joslyn v. Smith, 13 Vt. 357, holding that payments by one joint contractor took a case out of the statute as to the others; Tillinghast v. Nourse, 14 Ga. 648, holding a payment on a joint note is sufficient to take it out of the statute as against a co-promisor; Partlow v. Singer, 2 Or. 309, holding the Oregon statute revived the old rule that a payment by one joint debtor revived the liability as to all; not followed in Willis v. Hill, 2 Dev. & Bat. L. 234, 31 Am. Dec. 414, holding if a debt be proved, declarations by a partner after dissolution removed the bar.

Miscellaneous.- Miscited in Gatling v. Robins, 8 Ind. 187, note.

1 Pet. 376-385, 7 L. 185, MECHANICS BANK OF ALEXANDRIA V. LYNN.

Specific performance. The court ought not to decree performance according to the letter when unconscionable, but may so modify the agreement as to do justice so far as possible and make compliance with such modification a condition of the grant of relief, p. 383.

Cited in Hulmes v. Thorpe, 5 N. J. Eq. 429, on the point that the court may modify the agreement so as to do justice if circumstances require it; Elfelt v. Hart, 1 McCrary, 16, 1 Fed. 269, holding that where a contract is tainted with fraud, it may be amended and equity would enter a decree which would be just; Wabash & E. Canal v. State, 7 Ind. 183, on the point that equity cannot dispense with a statute on a contract but it may use discretion in regard to enforcing it; Fitzpatrick v. Beatty, 1 Gilm. 468, on the point that equity will not enforce a contract founded in fraud or mistake; Palo Alto Co. v. Harrison, 68 Iowa, 90, 26 N. W. 19, holding a contract founded in fraud or mistake or not supported by an adequate consideration will not be enforced; Morrison v. Pray, 21 Ark. 116, holding mere naked hardness of the bargain would not prevent its enforcement; Wallace v. Rappleye, 103 Ill. 259, on the point that a change of circumstances may be regarded before decreeing performance; Daughdrill v. Edwards, 59 Ala. 429, where there was a question as to the enforcement of a contract payable in Confederate money; Miami Exp. Co. v. Bank of the United States, Wright, 253, on the point that if a conveyance is a mortgage it cannot be changed as against intervening interests.

Equity pleading.- If a bill charges notice an answer must be given without special interrogatory; but a defendant is not bound to answer an interrogatory not warranted by some matter contained in a former part of the bill, p. 383.

Judgments.- Where a judgment debtor comes into court asking protection on the ground that he has satisfied the judgment, the court may modify or grant his prayer upon such conditions as justice demands, p. 384.

Cited in Veazie v. Williams, 8 How. 161, 12 L. 1030, where false steps were taken to enhance the price of property sold at auction and a party sought relief in equity.

Miscellaneous.- Miscited on the construction of a devise in Jenkins v. Merritt, 17 'la. 322, and in Perkins v. Currier, 3 Wood. & M. 80, F. C. 10,985.

1 Pet. 386-454, 7 L. 189, CONARD v. ATLANTIC INS. CO.

Bottomry and respondentia.- That a borrower at respondentia applies the money in discharge of a prior loan does not make any difference as to the legal right of the parties, p. 436.

Cited in The Brig Draco, 2 Sumn. 188, F. C. 4,057, holding it is not necessary to a bottomry bond that the money be advanced for necessaries. Cited generally in The Unicorn, 5 Hughes, 82, F. C. 9,849, on the definition of bottomry, the court construing the terms loss, average and salvage in maritime contracts.

Distinguished in Greeley v. Waterhouse, 19 Me. 14, 36 Am. Dec. 730, holding valid bottomry bonds may be executed at home port, although not applied to the purposes of the ship or voyage. Referred to in Greely v. Smith, 3 Wood. & M. 248, 249, 251, 254, 256, F. C. 5,750, holding a bottomry bond would not be valid for a preexisting debt but only for repairs or outfits and cargo.

Admiralty. It is not necessary that a respondentia loan should be made before the departure of the ship on the voyage, nor that the money loaned should be employed in the outfit of the vessel or invested in the goods on which the risk is taken, p. 437.

Cited in The Rapid Transit, 11 Fed. 325, the court saying the same principle applied to bottomry bonds; Gardner v. The White Squall, 9 Fed. Cas. 1203, holding the master cannot make a loan on bottomry to pay claims for repairs in a foreign port, contracted five months prior; The Ship Panama, Olcott, 351, F. C. 10,703, on the point that validity of bottomry is not affected if it be given after the ship has sailed, provided the debt is at risk.

Admiralty.—The lender at respondentia is not presumed to lend upon the faith of any particular appropriation of the money; and if it were otherwise, his security could not be avoided by any misapplication of the fund where the risk was bona fide upon

other goods and it was not a mere contract of wager and hazard, p. 437.

Insolvency in the sense of the act of 1799, giving United States priority, relates to such a general divestment of property as would in fact be equivalent to insolvency in its technical sense; it supposes that all the debtor's property has passed from him, p. 439.

Cited in Morewood v. Hollister, 6 N. Y. 322, holding an assignment of all one's estate to trustees, for the payment of one's debts, is conclusive of insolvency; Stanley v. Robbins, 36 Vt. 429, holding a general assignment by a creditor must contain a trust for others not parties and embrace all the debtor's property. Cited generally in Woodhull v. Wagner, 1 Bald. 302, F. C. 17,975, on the effect of a discharge in one State on a debt payable in another.

4

Insolvency.- Mere inability of the debtor to pay all his debts is not an insolvency within the act of 1799, giving United States priority, but it must be manifested in one of the three modes pointed out in the statute, p. 439.

Cited in United States v. McLellan, 3 Sumn. 352, F. C. 15,698, on the same point.

Insolvency.- Priority of the United States under insolvency act of 1799 is not a right superseding an assignment of a debtor as to any property which the United States may afterwards take in execution so as to prevent such property passing by the assignment, but is a mere right of prior payment out of general funds of debtor in the hands of assignee, p. 439.

Cited and followed in Conrad v. Nicoll, 4 Pet. 310, 7 L. 868, and and Conrad v. Pac. Ins. Co., 6 Pet. 280, 8 L. 398, both similar to the principal case; Thayer v. Hedges, 22 Ind. 307, on the point that the provision that the laws of the United States should be supreme justified the act giving priority; United States v. McLellan, 3 Sumn. 355, F. C. 15,698, on the point that a conveyance to one or more creditors to discharge their debts was not a "voluntary assignment" so as to give priority; United States v. Wood, 28 Fed. Cas. 753; S. C., sub nom. United States v. Lewis, 13 Bank. Reg. 38, and Campbell v. Colo,, etc., Co., 9 Colo. 66, 10 Pac. 252, both holding that the priority did not attach where a partial assignment only was made; United States v. Langton, 5 Mason, 284, 285, F. C. 15,560, holding that priority is not affected by an omission of a small part by mistake or fraud; United States v. Couch, 25 Fed. Cas. 674, holding an assignment of the firm property and property of only one member does not establish insolvency of the firm so as to give priority; United States v. Wilkinson, 5 Dill. 277, F. C. 16,695, holding the priority is secured only when the property is attached or is being administered for his creditors generally; Bush v. United States, 8 Sawy. 330, 14 Fed. 323, holding a judgment confessed

for an amount of one's assets not an assignment giving priority; United States v. Griswold, 7 Sawy. 303, 8 Fed. 501, holding that when a debtor assigned his property by means of judgments confessed, priority attached; Farmers' Bank v. Beaston, 7 Gill & J. 426, 28 Am. Dec. 229, holding priority does not apply in mere cases of inability to pay; Kalkman v. Causten, 2 Gill & J. 365, on the point that the United States is entitled to priority in the payment of custom-house bonds; Forsyth v. Clark, 3 Wend. 655, and Storm v. Waddell, 2 Sandf. Ch. 527, 528, holding that the priority creates no lien on specific property; Cottrell v. Pierson, 2 McCrary, 393, 12 Fed. 807, United States v. Lewis, 13 N. B. R. 33, 26 Fed. Cas. 924, and United States v. Duncan, 12 Ill. 541, 543, all holding the priority does not supersede a prior lien; Beaston v. Farmers' Bank, 12 Pet. 134, 136, 9 L. 1029, 1030, holding the right secured by an attachment could not be defeated; United States v. Duncan, 4 McLean, 630, F. C. 15,003, holding the priority does not disturb the lien of a mortgage or of a judgment made perfect by levy; Savings & L. Soc. v. Multnomah Co., 169 U. S. 428, 42 L. 805, 18 S. Ct. 395, on the point that a mortgage of realty will defeat the priority; United States v. Duncan, 12 Ill. 535, and United States v. Duncan, 4 McLean, 622, F. C. 15,003, both holding the priority suspended State laws on the distribution of estates; PostmasterGeneral v. Robbins, 1 Ware, 169, F. C. 11,314, holding the priority did not supersede the allowance to a widow; United States v. Crookshank, 1 Edw. Ch. 237, 240, holding the priority does not give priority out of real estate vested in the heirs of the debtor; United States v. Hack, 8 Pet. 275, 8 L. 913, holding the priority did not extend so as to take the property of a partner from partnership effects to pay a separate debt; Brent v. Bank of Washington, 10 Pet. 611, 612, 9 L. 553, holding the priority does not overreach a prior conveyance by a debtor; United States v. Canal Bank, 3 Story, 81, F. C. 14,715, on the point that there is no general priority in the United States, but the priority depends upon the statute; Watson v. Watson, 1 Ga. 268, holding the estate of a guardian who dies chargeable to his wards is liable therefor before any other debt; Doe ex dem. v. Deavors, 8 Ga. 485, holding that taxes are a general lien on all property of the debtor; Anderson v. State, 23 Miss. 476, holding although a tax was not a lien on choses in action the tax collector had a right to prior payment of their proceeds; Kimball v. Jenkins, 11 Fla. 125, 89 Am. Dec. 241, holding that an execution lien was not dissolved by death; Brunswick & Alb. v. Hughes, 52 Ga. 560, on the point that secret liens are dangerous and are only upheld where some great public interest is involved.

Mortgages. A mortgage is not only a lien for a debt but, both in law and equity, a transfer of the property itself as security; and equity treats it as a trust estate, and, according to the Intention of the parties, as a qualified estate and security, p. 441.

Cited in Rogers v. Bradford, 1 Pinn. 434, on the point that both at law and in equity a mortgage is not only a lien but is a transfer as a security; Chaffe v. Hevner, 31 La. Ann. 612, 613, dissenting opinion, on the point that a mortgage is an absolute conveyance with a defeasance and the mortgagor has only an equity; Gordon v. Rixey, 76 Va. 698, on the point that a mortgagee is a purchaser to the extent of his interest; Hammond v. Solliday, 8 Colo. 613, 9 Pac. 783, on the point that when possession is taken by a mortgagee, the title is in him for the purpose of subjecting the property to his debts; Jefferson Coll. v. Dickson, 1 Freem. Ch. 483, on the point that the fee passes and the mortgagee may at once enter or bring ejectment; United States v. Stowell, 133 U. S. 19, 33 L. 560, 10 S. Ct. 248, where a mortgagee of land with an illicit distillery on it was protected; United States v. Arcola, 24 Fed. Cas. 850, where the interest of a loyal mortgagee in a vessel was protected; Waterman v. Mackenzie, 138 U. S. 260, 34 L. 927, 11 S. Ct. 337, on the point that when the right of possession as well as of property is in the mortgagee, suit must be brought by him; Bank of Muskingum v. Carpenter, 7 Ohio (1 pt.), 70, 28 Am. Dec. 621, on the point that a mortgagee has a specific interest and his preference over judgment creditors; Mundy v. Monroe, 1 Mich. 72, holding an act inhibiting ejectment by mortgagees was void as to prior mortgages; Bronson v. Kinzie, 1 How. 318, 11 L. 146, holding a law extending the equitable estate of a mortgagee unconstitutional; Upham v. Brooks, 2 Wood. & M. 413, F. C. 16,797, and Kennebeck, etc., R. R. Co. v. Portland, etc., R. R. Co., 59 Me. 75, dissenting opinion, on the point that in equity when the debt is discharged there is a resulting trust for the mortgagor; Cleveland v. La Crosse, etc., R. R. Co., 5 Fed. Cas. 1035, on the point that without a defeasance one would have a right to recover by discharging his liabilities; Pickett v. Buckner, 45 Miss. 244, discussing the effect of a mortgage on a right to dower; Holmes v. Gardner, 50 Ohio St. 176, 33 N. E. 646, 20 L. R. A. 332, bona fide purchaser from a fraudulent mortgagee would be protected as against the general creditors; Whittington v. Flint, 43 Ark. 519, 51 Am. Rep. 582, holding the possession of a grantee of a mortgagor not adverse to the mortgagee without express disclaimer; Green v. Turner, 38 Iowa, 118, where a mortgagee in possession after being paid set up the statute of limitations; Williams v. Beard, 1 S. C. 324, holding one purchasing from a mortgagor in good faith acquires a title against a mortgagee whose mortgage is unrecorded; Charter v. Stevens, 3 Den. 35, 45 Am. Dec. 445; Waterman v. McKenzie, 138 U. S. 258, 84 L. 926, 11 S. C. 336, and Tannahill v. Tuttle, 3 Mich. 113, 61 Am. Dec. 484, all considering the effect of a chattel mortgage; Colby v. Cato, 47 Ala. 253, on the point that a conveyance to secure payment for an acceptance is in effect a mortgage; Alexander v. Mortgage Co., 47 Fed. 135, construing a conveyance to secure creditors with a provision for reconveyance on payment; Pollard