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LIENS. VENDOR'S LIEN. Continued.
and does not pass to his assignce. And if the vendee sells the land to
one not having notice of the lien, or not chargeable with notice, the
lien will be lost. Mosier, Admr. v. Meek et al. 79.
8. Where a father conveyed land to his son, taking his notes for the
price, and during his lifetime declared that he did not intend to collect
the notes: Held, that such declaration clearly showed he did not in-
tend to rely on or enforce a vendor's lien, and consequently his repre-
sentatives could not enforce one. Ibid. 79.
SUBSEQUENT ADMISSION BY DEBTOR.
1. And of a new promise. Where the Statute of Limitations has run
and become a bar to an action for the recovery of a debt, a subsequent
admission by the defendant that the account was correct, or that he had
received the goods or money, or had executed the note sued on,
suflicient to obviate the bar. Wachter v. Albee, Admr. 47.
2. Nothing short of an express promise to pay the money, or an un
qualified admission that the debt is due and unpaid, nothing being said
or done at the time rebutting the presumption of a promise to pay, will
obviate the bar of the Statute of Limitations. Ibid. 47.
3. A promise made to a stranger will not take a case out of the oper.
ation of the Statute of Limitations. In order to give it legal force and
effect, it must be made to the party to be benefited, or to some one au-
thorized to act in his behalf. Ibid. 47.
4. A promise to pay a debt, made to a person not legally or equita-
bly interested in the same, and who does not pretend to have had any
authority from the creditor to call upon the debtor in relation to the
debt, will not avoid the bar of the statute. McGrev et al., Exrs. v. For-
5. Where A was indebted to B, and B to C, and the latter, being anx-
ious to collect his debt, but without the authority of B to negotiate or
act for him, called upon A, and inquired as to his indebtedness to B,
with a view thereby of getting money to enable B to pay him, and A
promised C to pay the debt he owed B, it was held, that C was not
legally or equitably interested in the debt thus promised to be paid,
and, not being authorized by B to act for him, the promise made by A
to C could not take the debt out of the bar of the statute. Ibid. 596.
EVIDENCE, TO TAKE A CASE OUT OF THE STATUTE.
6. New promise, to avoid bar. The burden of proving a promise to
pay a debt barred by the statute, within five years, is upon the creditor
secking to enforce his claim. Proof of a promise to pay in 1865 or
1866, the witness thinking it was probably the latter year, when if it
was before August, 1866, it was not within the five years, is not suffi.
cient proof to take the case out of the statute. Ibid. 596.
EVIDENCE, TO TAKE A CASE OUT OF THE STATUTE. Continued.
7. Where a party has permitted a debt to run, without any
collect ii, until the Statute of Limitations can be
in bar of the
action, a court will not aid him on slight proof; on the contrary, the
evidence should be clear and satisfactory to overcome the bar of the
statute. Wachter v. Albee, Admr. 47.
1. Without notice, void. Where a notice by publication, and the
certificate of publication in a proceeding by an executor to sell lands,
are lost, an order of the court substituting a copy, without notice to
parties to be affected thereby, and on ex parte affidavits, is a nullity,
and binding on no one. Harris v. Lester et al. 307.
2. The power of the court to replace that which has been lost or
destroyed from the files, for any cause, can not be invoked, except upon
reasonable notice to the parties adversely interested. Ibid. 307.
See CONSERVATOR, 2, 3, 4.
WHEN IT LIES.
1. Not to control the action of voluntary associations for religious or
moral purposes only. Courts never interfere to control the enforcement
of the by-laws of merely voluntary associations, created for the advance-
ment of religious, moral or social principles, or merely for amusement.
Such organizations must be left to enforce their rules and regulations
by such means as they may adopt for their government. The People
ex rel. v. Board of Trade, 134.
2. To admit one to membership. See BOARD OF TRADE, 2.
POWER TO MAKE CONTRACTS.
1. A married woman has the legal right to bind herself for labor
and materials furnished in the erection of buildings upon her separate
property. On a contract for the erection of buildings upon her prop-
erty with her knowledge, consent or approval, she and her property
will be liable for the debt so incurred. Greenleaf et al. v. Beebe, 520.
DEED BY MARRIED WOMAN.
2. While under age. A deed executed by a married woman under
the age of eighteen years, for the conveyance of her estate, is void, and
MARRIED WOMEN. DEED BY MARRIED WOMAN. Continued.
not merely voidable; hence she is not required to take any steps after
coming of age to avoid it. Harrer et al. v. Wallner, 197.
CONVEYANCE TO HUSBAND AND WIFE.
3. Estate by the entirety. Prior to the act of 1861, a deed of convey.
ance to a husband and wife created a joint estate in them by the entirety
during their natural lives, and to the survivor on the death of either,
and the rights of the parties to a vested and absolute title to such an
estate could not be changed, modified or affected by that act. Ibid. 197.
4. Nature and peculiar features. The estate by the entirety vests in
the slırvivor absolutely and in tee, and, by the destruction of the estate
of one, it enures to the other. Neither can have partition, nor can
either sell the estate so as to affect the rights of the other, and when
their rights to the property are invaded, a suit for the injury, or for the
recovery of the property, must be joint, because the property and the
right to its enjoyment is joint during coverture. Ibid. 197.
5. Rights and powers of wife in, not affected by act of 1861. From
the very nature of the estate by the entirety, the act of 1861 could not
remove the disabilities so as to confer upon the wife any more right to
sue for any interest in property held by such title during coverture,
than she had before; hence the Statute of Limitations can not run
against a wife who was tenant by the entirety at the time of the passage
of the act of 1861, so long as coverture continues. Ibid. 197.
6. Converted by dirorce into a tenancy in common. Where a husband
and wife, who are seized of an estate by the entirety, are divorced, the
estate by the entirety is destroyed, and they become tenants in common.
MASTER AND SERVANT.
WHEN THE RELATION DOES NOT EXIST.
1. As between employer and employee. One who contracts to do a
specific piece of work, furnishing his own assistants and executing the
work either entirely in accord with his own ideas, or in accordance
with a plan previously given to him by the person for whom the work
is done, without being subject to the orders of the latter in respect to
the details of the work, is clearly a contractor, and not a servant, and a
person injured by his negligence in the performance of the work would
have no right of action against the party for whose benefit the work is
being donc. Hale et al. v. Johnson, 182. 185-
TAKING PROPERTY UNDER CHATTEL MORTGAGE.
1. Before debt is due. Where the mortgagee wrongfully takes pos-
session of mortgaged chattels before his debt is due, and the mortgagor
procures a prior mortgagee to replevy the same from him, and they are
MEASURE OF DAMAGES.
TAKING PROPERTY UNDER CHATTEL MORTGAGE. Continued.
sold under the prior mortgage in payment of a debt of the mortgagor,
the proper measure of the mortgagor's damages, in trespass for the
wrongful taking, will be the difference between the market value of the
property at the time it was first taken, and its market value when retaken
on the replevin suit, together with such other actual loss to business, or
otherwise, as may be proved as the direct result of the first taking. The
defendant will not be liable for any injury to the property after the re-
taking, nor for any loss consequent upon the necessary result of a sale
at auction by the second mortgagec. Davenport v. Ledger, 574.
FOR DEATII OCCASIONED BY NEGLIGENCE.
2. Pecuniary injury only. The act giving the right of action against
a railway company for causing the death of a person, limits the dama-
ges to the pecuniary injury sustained, and the jury should, in such case,
disregard all grief, sorrow and mental affliction of the widow and chil.
dren of the deceased, and consider only the pecuniary injury, and the
court, when asked, should so instruct them. Chicago, Burlington and
Quincy Railroad Co. v. Harwood, 88.
3. Under vrit against tenant. A sub-lessee of a boarding house,
having no right to the occupation of the premises after the expiration
of the original lease, if expelled on process to which he is no party, is
not entitled to damages arising from being deprived of his business of
keeping boarders in the premises. He can, at most, recover only for the
actual injury done to his property in removing the same from the prem-
ises. Miller et al. v. White, 580.
INJURY FROM SALE OF LIQUOR.
Evidence in aggravation. See INTOXICATING LIQUORS, 1.
Evidence in mitigation. See same title, 2.
MECHANIC'S LIEN. See LIENS, 3, 4.
SUBMISSION TO VOTE IN CITIES. See ELECTIONS, 1, 2.
MORTGAGES AND DEEDS OF TRUST.
DEED WHEN A MORTGAGE.
1. Evidence in question. Contracts for re-purchase, made contempo-
raneously with conveyances of real estate, absolute in form, are, some-
times, strong evidence tending to show the conveyances are intended to
be mortgages; but where it appears the parties really intend an abso-
lute sale and a contract allowing the vendor to re-purchase, such inten-
tion must control. Hanford v. Blessing, 188.
MORTGAGES AND DEEDS OF TRUST. Continued.
TO SECURE ACCOMMODATION PAPER.
2. Valid as against purchaser buying subject to. The owner of land
executed a note payable to his own order, and indorsed it and delivered
it to another, and at the same time executed a deed of trust to secure its
payment, for $25,000. The indorsee turned the note over to a banking
house as collateral security for $14,000, borrowed of them by him. Be-
fore the maturity of the note, the party executing the deed of trust con.
veyed the land by general warranty deed 10 A, for the consideration of
$103,000, $78,000 of which was paid by canceling that amount of the in-
debtedness of the indorsee of the $25,000 note, and $25,000 more of such
indebtedness was to be canceled when said note was paid, and the lien
of the deed of trust given to secure it was removed from the land.
When the $25,000 note became due, another bank, with which the indor-
see of the note had an account, advanced the $14,000 which he had bor.
rowed on the note, and took it as collateral security for the amount so
advanced and for all indebtedness due to it from such indorsee, which
exceeded the whole amount of the note: Held, on a bill to foreclose the
deed of trust, that even if the note was accommodation paper, yet, as it
was treated by the maker, at the time he conveyed to A, as a valid in-
cumbrance on the land, his grantee, A, was in no position to defeat the
lien, and that the bank had the right to foreclose the deed of trust for
the full amount the note, as against A. Barker et al. v. International
Bank of Chicago, 96.
3. Whether as to mortgagor by agreement to release as to purchaser.
A mortgagor sold one-half of the mortgaged premises, and the mortga-
gee agreed with the mortgagor and the purchaser that, after a certain
payment was made on the mortgage debt, he would hold the half of the
premises so sold for one-half of the balance of the mortgage debt only,
with an express proviso that the mortgagor should not be released from
the payment of any portion of the mortgage debt. Afterwards, the in.
stallment required to be paid was paid, as was also one-half of the resi.
due of the mortgage debt, but no application was made to have the
holder apply it in discharge of the mortgage indebtedness on the half
so sold, and it was not so applied. After making some payments, but
before the one-half of the mortgage debt was paid, the purchaser, being
unable to complete his purchase, reconveyed, for a nominal considera-
tion, to the mortgagor, the half so purchased by him, losing all benefit
of what he had paid: Held, that the half so sold and reconveyed to the
mortgagor was not released from the mortgage. Bush et al. v. Sherman,
4. Such a contract, although without any consideration, would be
binding upon the morgagee as to the purchaser, if he acted upon it and
paid his money, but would not be as to the mortgagor; and when the
property was reconveyed by the party for whose benefit the contract
was made, to the mortgagor, who, by the express terms of the contract,