§2. An agreement under seal to come to a settlement within a limited period, and to pay the balance found due upon such settlement, is but a collateral undertaking, and does not operate as an extinguishment of the original debt upon simple contract; and the period agreed upon having elapsed without a settlement being made, such covenant is no defense to suit on the simple contract. Baits v. Peters, 9 Wheat., 556.

§ 3. Although a security under seal, being of a higher nature, extinguishes a simple contract debt, this effect cannot be attributed to a sealed instrument which merely recognizes an existing debt, and provides a mode to ascertain its amount and liquidation. Bank of Columbia v. Patterson, 7 Cr., 299.

§ 4. Where parties to one contract execute a second, which differs from the first, they must be deemed to have voluntarily abandoned the first contract, and they cannot recover under the first when performing under the second. Parish v. United States,* 1 Ct. Cl., 366.

§ 5. Where a new contract has been substituted for an old one, and then has been repudiated by the plaintiff, that fact forms a good defense in an action on the original contract. Hitchcock v. City of Galveston, 3 Woods, 293.

§ 6. Where a new contract is made between the same parties and in relation to the same subject-matter, the old will not be merged in the new unless it be delivered up and canceled, or, it seems, unless they are wholly inconsistent with each other. Avery v. Hackley, 20 Wall., 411.

§ 7. An executed agreement is not extinguished by the mere recital of it in a later one, although the latter be under seal. Bank of Columbia v. Patterson, 7 Cr., 299.

§ 8. After the execution of a chattel mortgage the parties entered into a new agreement by which, on his giving proper security, the mortgagor should receive back the goods and sell them, and apply the proceeds to the debt. In an action on such contract, it was held to be no defense to the action that the mortgage had been assigned to the security, and that the new agreement was a substitute for the mortgage, and that the creditor relied on the personal security of the debtor and the security rather than on the mortgage. Harper v. Neff, 6 McL., 391.

§ 9. The agent of an insurance company entered into a bond to the company conditioned that he should faithfully perform his duties and faithfully pay over all moneys, etc., and which provided that it should continue in force during the continuance of the agreement as to commissions under which it was entered into, and during the continuance of any future agreement. Two years afterwards a new contract was entered into between the company and the agent, which provided for a different compensation, and which provided that it should abrogate all former contracts as far as new business was concerned. Held, that the bond was not abrogated by the new contract. Boogher v. Insurance Co., 13 Otto, 98.

10. By the common law, a simple contract debt is not extinguished by the creditor's taking a new security for it, unless the security be of a higher nature, as an instrument under seal, or unless it be agreed to be received in satisfaction of the debt; but by the law of Maine, if a negotiable security be given for a pre-existing simple contract debt, the legal presumption is that it is an extinguishment of the original cause of action; but this presumption is liable to be controlled by proof to the contrary. The presumption of the local law, however, will not be caforced in admiralty against a seaman who receives of the owners their negotiable note for his wages. Such note will not be held to be an extinguishment of his claim, nor of his lien against the ship, unless it is distinctly stated to him at the time that such will be the effect, and the note is accompanied by some additional security or advantage to the seaman, as a compensat on for his renouncing his lien on the vessel. The Betsy and Rhoda, Dav., 112.

§ 11. Mortgages. There cannot be a merger of a mortgage and fee unless the two interests are united in one person. Thus where a mortgagee transfers a mortgage a short time before receiving a conveyance of the fee to the mortgaged premises, there is no merger; and this is so although the conveyance of the fee is recorded, while that of the mortgage is not. Oregon & Washington T. I. Co. v. Shaw, 5 Saw., 336; 6 Saw., 52.

§ 12. Even if the mortgage and fee become united in the mortgagee there is no merger, if the mortgagee manifest his intention to keep the mortgage and fee separate by conveying the former. Ibid.

§ 13. Where a senior mortgagor wrongfully carried away a portion of the property subject to his own and a junior mortgage, held, that his debt was not extinguished by what is termed in the civil law "confusion" (equivalent to "merger" as used in the common law), to the extent of the value of such property; that he was a mere tort-feasor, and that no part of his debt could be merged or extinguished by a credit or set-off arising from unliquidated damages for a trespass. Palmer v. Burnside, 1 Woods, 179.

§ 14. Where a mortgagee brought an action on mortgage bond, obtained judgment, had a portion of the mortgaged premises levied upon and sold, and he became the purchaser, on the

supposition that an equity of redemption could be sold on execution, held, that, as to the part sold, the equity purchased merged in the legal estate. Hill v. Smith, 2 McL., 446.

§ 15. A purchaser cannot rely upon the record as showing merger, inasmuch as merger generally takes place or not according to the actual or presumed intention of the mortgagee. He must go beyond this and ascertain whether there has been a merger in fact; and he acts at his own peril if he does not require his grantor to produce the mortgage and note supposed to be merged, and discharge the mortgage of record, or show that it constitutes a part of the title of the estate. A purchaser of property, on which the record shows there is an unsatisfied mortgage, takes it with notice that there is an existing lien in the hands of somebody. His interest is liable to that lien, if it is not in the hands of the mortgagor. Oregon Trust Co. v. Shaw, 5 Saw., 336.

16. When the mortgagor's assignee becomes virtually the holder of the debt meant to be secured thereby, the equitable or legal titles merge in him, and he becomes the sole owner. Upham v. Brooks, 2 Woodb. & M., 407, 416.

§ 17. At law a mortgage conveys the legal title to the property, and a subsequent release of the equity of redemption to the mortgagee does not operate to merge the legal and equitable titles, but merely to extinguish the equity of redemption. Dexter v. Harris, 2 Mason, 531, 539. § 18. A junior incumbrancer, upon paying a prior lien covering the same property and other property also, is subrogated to the position of the prior incumbrancer, and may enforce the prior lien upon such other property to the relief of that covered by the junior incumbrance. Peter v. Smith, 5 Cr. C. C., 383.

§ 19. It is a well settled principle in equity that a junior mortgagee who is compelled to pay off a prior incumbrance upon the land is subrogated to the rights of the prior incumbrancer and may claim all the benefits of his lien. Bank of the United States v. Peter, 13 Pet., 123. Where one of three joint mortgagors pays the debt, the mortgage, after notice to the mortgagee, will stand as security for two-thirds of the debt in favor of such mortgagor. Pratt v. Law, 9 Cr., 456; Campbell v. Pratt, 5 Wheat., 429.

§ 20. If one of several mortgagees obtains an annulment of a tax sale of the mortgaged property, this inures to the benefit of all the mortgagees of the property so far as the vacating of the tax conveyance is concerned, though the mortgagee who obtained such annulment is entitled to be reimbursed out of the mortgaged property. Weaver v. Alter, 3 Woods, 152.

§ 21. Estates in land. Where the legal estate and trust estate are co-extensive, as in fee, and both become vested in the same person, there is a merger of the trust estate in the legal estate. Robinson v. Codman, 1 Sumn., 121.

§ 22. Where an estate out of which a mill privilege has been carved becomes united in ownership with another estate below, all privileges with respect to such separate estates become merged, so that the owner of both may convey different rights and privileges from what were before attached to either estate; but in conveying either to different and new persons, any change in the privileges made appurtenant to each must distinctiy appear, or each will be presumed to exist as before the junction of the estates. Perry v. Parker, 1 Woodb. & M., 280. § 23. A legal term for years does not merge in an equitable title to the reversion. Thus, where A., a lessee for ninety-nine years, renewable forever, at a certain rent, sold to B., by deed of bargain and sale, the demised premises, together with other lots and lands in which he had a fee-simple estate, “to have and to hold the aforesaid lots or parcels of land, to the said B., his heirs, executors, administrators or assigns, forever,” with general warranty of "the said lots or parcels of lands,” held, that B. acquired the legal estate in the term for years only, although A. had, at the time of the conveyance, an equitable title to the reversion; and that the subsequent sale of the reversion by A. to C., and a conveyance to him from the original lessor, were valid and transferred the reversion to C. Little v. Ott's Heirs, 3 Cr. C. C., 416. § 24. Where a devisee in remainder in fee purchases the life estate, he becomes owner in feesimple, the life estate being merged in the remainder. Webster v. Gilman, 1 Story, 499.

§ 25. Notes. In the courts of the United States a note is not regarded as a merger of the original consideration, but it is doubtful whether the terms of the note, as to time, place and manner of payment, are restrictive, and govern, in any way or to any extent, the right to recover on the original debt. Brown v. Noyes, 2 Woodb, & M., 75.

§ 26. Official bonds.-The balance due from a public officer on account is not merged in his official bond, given with sureties, so as to prevent suit against him in his individual capacity for the balance due. Walton v. United States, 9 Wheat., 651.

§ 27. Judgments.- Bonds upon which judgments are rendered are merged in the judgments and have no legal existence whatever. United States v. Astley, 3 Wash., 508. See JUDG

MENTS.

§ 28. A judgment rendered in a state court is conclusive in every other state, and extinguishes the original ground of action. Green v. Sarmiento, Pet. C. C., 74.

§ 29. A judgment against one, upon a joint contract of several persons, bars an action against the others, the entire cause of action being merged in the judgment. But this common law rule is changed by the statute of Michigan, which provides that judgment against joint obligors" shall be conclusive evidence of the liabilities of the defendant who was served with process in the suit, or who appeared therein; but against every other defendant it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence." Mason v. Eldred, 6 Wall., 231; 16 Am. L. Reg., 402.

§ 30. If a judgment is obtained against one partner, in a suit on a partnership note against all the partners, the note is merged in the judgment, which may be pleaded in bar in an action on the instrument against one or all of the partners. Woodworth v. Spaffords, 2 McL., 168. § 31. When a judgment is obtained against one of two partners on a joint promise, the contract is merged in the judgment, and an action at law cannot be maintained against the partners on the same ground. Sedam v. Williams, 4 McL., 51.

§ 32. Where A., having given a bond with sureties for the faithful performance of his duties as collector of customs, subsequently gave an additional bond with a different surety, and a judgment was perfected against him on the latter bond, held, in a joint action against the obligors in the former bond, that the second bond did not operate as a merger or extinguishment of the first, being a security of no higher degree, and that judgment on the second bond could not, unless it was followed by satisfaction, have any effect on the first bond. United States v. Hoyt, 1 Blatch., 326.

§ 33. Judgment was confessed by one partner against himself and the other members of the firm, and an assignment made to secure the judgment. This judgment was afterward set aside as to a partner not joining in the confession. Whereupon the judgment creditors had the judgment set aside as to the remaining partners, and brought suit on the original notes, on which the judgment set aside had been rendered. It being objected in this suit that the notes were merged in the judgment, the court held that the whole arrangement to secure the debt being in effect annulled, the original indebtedness stood revived. Clark v. Bowen, 22 How., 270.

$34. Where a deed of trust was executed to secure the payment of certain notes, and a judgment was obtained on the notes, held, that the judgment did not operate as an extinguishment of the right of the holders of the note to call for the execution of the trust. Bank of the Metropolis v. Guttschlick, 14 Pet., 19.

§ 35. By the substitution of a new contract for an original debt, the old debt is not merged in, or extinguished by, the new contract, if such substitution be conditional, and the conditions are not fully complied with. Hyde v. Booraem, 16 Pet., 169.

§ 36. A note is merged in a judgment rendered upon it, and the latter is thereafter the evidence of the debt. Connecticut Mutual Life Ins. Co. v. Jones, 1 McC., 388.

§ 37. A foreign judgment does not operate as a merger of the original cause of action, and cannot be pleaded in bar of an action founded thereon. Lyman v. Brown, 2 Curt., 559.

§ 38. Although, where two or more are bound jointly and severally, the obligee may elect to sue jointly or severally, having made his election and obtained a joint judgment, his bond is merged in the judgment, and no suit can thereafter be brought against any of the obligors or their representatives severally on such bond. United States v. Archer, 1 Wall. Jr., 173.

§ 39. Crimes.- In Maine an action may be maintained for the private wrong, although the act which is the foundation of the suit amounts to a felony, the doctrine of the common law, founded on the principles of the feudal system, that a private wrong is merged in a felony, not being applicable to the civil policy of this country, and never having been adopted in that state. Plummer v. Webb, 1 Ware, 69.

§ 40. At common law the civil rights of a party injured by a felonious act are not merged in, or wholly suspended by, the rights of the government to punish the same, but merely suspended until the rights of the government to punish it criminally have been satisfied. Ocean Ins. Co. v. Fields, 2 Story, 59.

§ 41. There is no merger in crimes of equal rank, such as misdemeanors; and it is competent for the government to put defendants on trial under a charge under section 5440, Revised Statutes, for conspiracy to commit the offense created by section 5443, Revised Statutes, where they have never been called in question for the same act by a charge under the latter section. United States v. De Grieff, 16 Blatch., 20.

$42. Though misdemeanors may be merged in felonies, yet there can be no merger of misdemeanors among themselves, even though one is more severely punished than the other. United States v. McDonald, 3 Dill., 543.

§ 43. Conspiracy to commit a misdemeanor is not merged in the completed object of the conspiracy. United States v. Martin, 4 Cliff., 156.

MESNE PROCESS.

See WRITS.

MESNE PROFITS.

See LAND.

MEXICAN CLAIMS.

See ARBITRATION AND AWARD, §§ 33, 35, and ASSIGNMENT, §§ 44, 45, case of Judson v. Corcoran,* 17 How., 662.

MEXICAN TITLES.

See LAND.

MICHIGAN.

See STATES.

MILITARY COMMISSION.

See WAR.

MILITARY GOVERNMENT.

See WAR.

MILITARY SERVICE.

See WAR

MILITARY STORES AND SUPPLIES.

See GOVERNMENT; WAR.

MILITIA

See WAR.

MINERAL LANDS.

See MINES.

MINES AND MINERAL LANDS.

I. IN GENERAL, §§ 1-31.

II. TITLE TO MINES AND MINERAL LANDS, §§ 32-67.

III. LOCATION OF MINING CLAIMS, §§ 68-166.

IV. LODES AND VEINS, §§ 167-182.

V. WATER RIGHTS, §§ 183-195.

VI. TAXING ORE AND CLAIMS, SS 196-198.

I. IN GENERAL.

§ 1. Local mining laws.- In order to introduce in evidence the written local mining laws of a district, it is necessary that it should appear aliunde that the copy comes from the proper repository, and that such party was empowered to give certified copies so as to become evidence, and that such was a copy of the laws prevailing and in force in the district at the required date. Roberts v. Wilson,* 1 Utah T'y, 292.

§ 2. The act of congress granting certain rights to those who discover, take up, and work mining claims, refers the parties to the local laws of the states and territories, and to the rules, regulations and customs of miners of the district where the mines are situated, for the measure of their rights; and when the real controversy is as to what such local laws, rules, regulations and customs are, or whether the parties have conformed to them, the fact that the claim, in regard to which the controversy exists, was located under the acts of congress, will not give a federal court jurisdiction of the suit as "arising under the constitution and laws of the United States." Trafton v. Nougues, 4 Saw., 178.

§3. Tailings Rights of subsequent locators. If first locators of mining claims work them with reasonable care and dilligence, slight injuries to subsequent locators below them would be damnum absque injuria; but first locators have no right to let their tailings run free in the gulch, and thus destroy the value of subsequent claims located below them, nor will the law tolerate a custom of miners in support of such practice. The custom of free tailings conflicts with the rule that locators must distinctly mark and define the ground set apart for the deposit of their tailings, and thus notify persons desiring to locate what ground is vacant. Lincoln v. Rodgers,* 1 Mont. T'y, 217.

§ 4. A lease of land for the purpose of mining oil, coal and other minerals vests a corporeal interest in the business described in the lease, which is the proper subject of an action of ejectment. Barker v. Dale,* 3 Pittsb. R., 190; 17 Pittsb. L. J., 19.

§ 5. A clause in a lease of mining land, by which the lessee was to commence operations by the 1st day of April, 1866, is not a condition, the non-performance of which determined the lessee's rights, or worked a forfeiture of the lease. Ibid.

§ 6. The time fixed in a lease of mining ground, within which the lessee was to commence operations, is of the essence of the contract, so far as to enable the lessor, after its expiration, to maintain an action against the lessee for the non-performance of his stipulation, but not so as to divest his interest under the lease. Ibid.

§ 7. A lease of premises, for the purpose of mining for oil, coal and other minerals, subject to lessor's "use of the same for the purpose of tillage," is exclusive of any right of the lessor to mine or excavate within the defined limits for oil or minerals. Ibid.

§ 8. If a lease of mining ground contains a clause by which the lessee is to commence mining operations by a certain date, which he fails to do such lessee cannot recover in an action of ejectment against a subsequent lessee of the same ground under the same lessor, if his failure to comply with the agreement in the lease is shown to have arisen from an intention on his part to surrender the lease and to abandon altogether the prosecution of mining operations. Ibid.

§ 9. Lead mines. The several acts of congress, passed prior to 1842, relating to the saline and mineral lands, confer a general authority upon the president to lease the lead mines in that portion of the territory of Iowa west of the Mississippi river. Leasing of Lead Mines,* 4 Op. Att'y Gen'l, 93.

§ 10. The president of the United States has no power by virtue of his office, and independent of statutory authority, to lease the lead mines in the territory of Iowa, nor was such power granted by either of the acts of congress passed March 3, 1807, relating to mines upon public lands. Lorimier v. Lewis,* 1 Morris (Iowa), 253.

§ 11. The fifth section of the act of congress of 3d March, 1807, authorizing the president to lease lead mines, etc., within the Indiana territory, does not limit the exercise of the power to the boundaries of Indiana as they might be afterwards changed, and no subdivision of the territory, or change from a territorial to state government, can affect the exercise of the power. The fact that the lead mine in question is within the state of Illinois is of no conse