upon which the equitable right depended, or had sufficient notice to put him on inquiry." And in Montefiore vs. Browne, 7 House Lds. Cas. 269, the matter is thus defined: "One is affected with notice of a fact which he might have learned on such inquiry as all prudent men would naturally make in a question where they were personally interested." And in New York, where equitable rights take precedence from their date, if notified before action brought, Chancellor KENT uses this language, in regard to the present question, Brinkerhoff vs. Marvin, 5 Johns. Ch. R. 326, 327: "Where a subsequent judgment or mortgage intervened, further advances, after that period, could not be covered." The italics are in the original, and would seem to indicate an opinion that such an equity must operate from its date. The learned Chancellor uses similar language in 4 Comm. 175, 176; James vs. Johnson, 6 Johns. Ch. R. 417, 432. We prefer to say, that in all cases, and this is no exception, third parties are bound to respect an equity from the moment they have such knowledge of its existence as to create belief. See Sir JOHN ROMILLY'S opinion in Rolt vs. Hopkinson, 25 Beavan 461. The text writers have adopted similar forms of expression. The case of McDaniels vs. Colvin stands quite alone in its requirements in regard to notice, and was influenced, no doubt, mainly, at the time the decision was made, by a consideration of the rule laid down in Gordon vs. Graham, and the extreme caution of Chief Justice WILLIAMS, in defining the requisite notice, unquestionably resulted from his desire to lay down an unexceptionable qualification of that case. But since that case has been abandoned in England, there seems no necessity, and no propriety, in following those extreme safeguards laid down. to bridge that case over.

We trust we have been able to make ourselves understood in the foregoing exposition of the principles and authorities connected with the registry of mortgages and the true limit of securities for future advances. And if we have been able to accomplish that, it is all which we purposed in the outset.

I. F. R.

RECENT AMERICAN DECISIONS.

Supreme Judicial Court of Maine-County of York.

NATHANIEL LEACH, ADM'R, IN ERROR, vs. MARY MARSH.

A judgment recovered on default, against a person admitted to have been non compos mentis at the time of the proceedings in the case, will be reversed on a writ of error brought by his administrator after his decease.

Actions brought against persons non compos for necessaries, it seems, constitute an exception; but, in such case, the defendant in error should plead the fact in bar of the suit.

The case of a judgment on default, against a person admitted to have been non compos, is to be distinguished from such cases as King vs. Robinson, 33 Maine 114, where the fact of unsoundness of mind was not admitted, and the defendant appeared by attorney, and judgment was rendered upon a trial and verdict. It would be manifestly unjust to render judgment against a party or his estate, when he had no capacity to take care of his own affairs or to employ another to do it.

Writ of error. On report by APPLETON, J.

Mary Marsh brought an action against Asa Leach, December 6, 1854; the writ was returned as served by leaving a summons "at the last and usual place of abode" of the defendant, and real estate attached; and, at January term, 1855, the defendant not appearing, a default was entered, and judgment was given for the plaintiff for $344.26, and costs of suit. Execution was issued, and extended by levy on the real estate of Leach.

Asa Leach having deceased, the plaintiff in error, appointed administrator on the estate of the deceased, sued out this writ of error against the said Mary Marsh, September 14, 1857, praying that the former judgment in her favor may be reversed, and assigning the following errors :

1, 2 and 3. Want of notice and insufficient service on the deceased. 4. "The said Asa Leach, at the time that the officer's return of service of said writ upon said Asa Leach purports to have been made, and for a long time before that date, and from that time until his decease, after the rendition of said judgment, was non compos mentis, and incapable of taking care of himself and

of managing his business affairs." 5. "No guardian ad litem was appointed by the Court for said Asa Leach, he being at that time non compos mentis, and having no guardian." 6. The judgment was obtained by collusion and fraud. 7. Asa Leach did not at the time owe Mary Marsh anything. 8. By the rendition of said. judgment, great injustice was done, &c.

The defendant, in her answer, traversed the first, second, third, and sixth assignments of error, but pleaded to the fourth, fifth, seventh, and eighth specifications, that there was "no error, either in the record and proceedings aforesaid, or in giving the judgment aforesaid," &c.

It was admitted that Asa Leach was non compos mentis, as alleged in the writ of error, and that the plaintiff was duly appointed administrator of said Asa Leach, May 5, 1856.

The depositions of Ezra Fairfield and John B. Fairfield, introduced by the plaintiff, tended to prove that the deceased was non compos mentis from about 1851 to his death.

It was agreed that the full Court should render such judgment as the law and facts authorize.

E. E. Bourne, Jr., for the plaintiff, argued elaborately the several points presented by the assignment of errors; but the case was decided mainly with reference to the fourth specification.

The question whether a judgment rendered against a person insane or non compos mentis at the time of the service of the writ upon him is erroneous has never been raised in this State; but many analogous cases are found in the Reports.

In Mansfield vs. Mansfield, 13 Mass. 412, which was a libel for divorce, the respondent was defaulted; but, on suggestion to the Court that he had become insane, the default was taken off, and further proceedings stayed until a guardian was appointed.

A judgment recovered against a person out of the State, without actual notice, will be reversed on error. Blanchard vs. Wildes, 1 Mass. 341; Smith vs. Rice, 11 Mass. 307; Thatcher vs. Miller, 11 Mass. 413; Same vs. Same, 13 Mass. 270; Wilton Manuf. Co. vs. Woodman, 32 Maine 185; Galusha vs. Cobleigh, 13 N. H. 79. A party having a right to appeal, but, without negligence on his

part, unable to avail himself of his right, is entitled to a writ of error. Monk vs. Guild, 3 Met. 373; Skepwith vs. Hill, 2 Mass. 35; Keen vs. Turner, 13 Mass. 265; Gay vs. Richardson, 18 Pick. 418.

Other grounds of reversal of judgment on account of incapacity to defend, are the death of one of the parties after suit commenced, the infancy of a party having no guardian, or coverture of a party without the joinder of the husband. 2 Tidd's Practice 1033; 3 Black. Com. 406, note 4; Smith vs. Rhodes, 29 Maine 360.

These authorities are based on the ground that the defendant has been barred of the opportunity to make a defence, either from want of notice or incapacity to defend. Do not the same reasons apply with equal force to the case of a person non compos mentis? Mitchell vs. Kingman, 5 Pick. 434.

The Court in this State, although the question has not been distinctly decided, has repeatedly intimated that error is the proper remedy in the case of a judgment recovered against a person so incapacitated. Smith vs. Rhodes, before cited; McArthur vs. Starret, 43 Maine 435.

In the case of King vs. Robinson, 33 Maine 114, relied upon by the defendant in error, although King was non compos, and no guardian was or had been appointed for him, yet he appeared by attorney, a hearing was had, and a verdict was rendered against him. The Court decided that, as he was represented in Court by his attorney, the judgment ought not to be reversed. King had counsel, and his counsel did not request the appointment of a guardian. The Court, therefore, decided against him. The decision is not a precedent for a case so unlike as the case at bar.

It is true there are incidental remarks, in the opinion delivered by C. J. SHEPLEY, which were not called for by the case, nor sustained by the authorities cited, some of which, however, are English cases decided on extremely arbitrary and anti-republican principles, and others are New York cases based on the old English authorities.

In a case of this kind, a writ of error is the most efficient and direct, as well as the least expensive process to obtain justice.

Arnold vs. Tourtellot, 13 Pick. 172; Hart vs. Huckins, 5 Mass. 260; Blanchard vs. Wilde, 1 Mass. 341; Wilton Manufacturing Co. vs. Butler, 34 Maine 431.

Goodwin and Fales, for the defendant in error, after arguing the 1st, 2d, 3d, 6th, 7th, and 8th specifications of error, contended, with regard to the 4th and 5th, that the mere fact that a party defendant was non compos mentis is no error. It has never been decided that proceedings may not be instituted, and prosecuted to final judgment, against a person who has become non compos. King vs. Robinson, 33 Maine 114.

The 5th specification is void for uncertainty. Even brief statements must contain specifications stated with certainty and precision to a common intent. Washburne vs. Mosely, 22 Maine 160; Nelson vs. Swan, 13 Johns. 483; 1 Chitty's Pleadings 398; Eustis vs. Kidder, 26 Maine 97.

The counsel for the plaintiff allege a distinction between this case and that of King vs. Robinson, on the ground that in that case there was an appearance by attorney, and a trial, whereas here there was a default. Yet he has not assigned that fact for error. The defendant was duly notified of the pendency of the suit, and failed to appear. The Court entered a default, pursuant to the statute, c. 82, § 2.

If by such default injustice was done to the defendant, he can on petition have a review; but there can be no error in following the provisions of the statute.

The mere fact that a defendant is non compos mentis, at the service of the process or when judgment is rendered, is no defence; for, at law and in equity, a contract or liability assumed by him while of sound mind may be enforced against him when he is of unsound mind. King vs. Robinson, before cited; Hix vs. Whitmore, 4 Met. 545; White vs. Palmer, 4 Mass. 147; Hathaway vs. Clark, 5 Pick. 490.

The opinion of the Court was drawn up by

GOODENOW, J.-This is a writ of error, dated September 14, 1857, to reverse a judgment rendered by this Court on the 25th