1. By the common MARRIED WOMEN. See HUSBAND AND WE a married woman can not bind herself by contract, and 2. Where a husband and wife executed a joint and several promissory note 3. The wife is a proper party defendant in a suit to foreclose a mortgage exe- 4. Where made arrangements with the tenant in possession, who was a 5. The certificate of the acknowledgment of a married woman to a deed, must 6. Under our law, no presumption of knowledge, on the part of a married MECHANIC'S AND LABORER'S LIEN. See PARTIES TO ACTION, 6; REDEMPTION, 2. 1. Where a civil engineer's lien for work done for the defendants in the construc- 3. The liens, which, by the Act of April 19th, 1856, entitled "An Act for MINES AND MINING-CLAIMS. See DITCH-OWNERS; WATER-RIGHTS. 1. A mis-description in the notice of the claimant to a quartz-lead, posted up near the premises, in pursuance of the requirement of the mining laws of the district in which the lead is situated, and where the lead is underground and undeveloped, will not vitiate the claim. Johnson v. Parks, 446. MORTGAGE. 1. Whether a a conveyance, absolute in form, executed in consideration of a precedent debt on th t of the grantor to the grantee, and an agreement executed at the same time by the grantee to re-convey the premises to the grantor upon payment of the consideration, with interest and expenses, taken together constitute a mortgage or a conditional sale, depends upon the fact whether the debt was discharged by the conveyance, or subsisted afterwards. Hickox v. Lowe et al., 197. 2. If the debt continued after the execution of the conveyance, the instruments constitute a mortgage; if, on the other hand, the debt was extinguished by the conveyance, the agreement to re-convey must be regarded as an independent contract, in no respect affecting the absolute character of the original instrument. Ib. 3. The only difficulty which arises, where there is an absolute conveyance with an attendant agreement to re-convey, is to ascertain the fact whether the debt subsists or has been extinguished; and where there is doubt on this point, Courts of Equity lean in favor of the right of redemption, and construe instruments as constituting a mortgage rather than a conditional sale. Ib. 4. A provision in an agreement for a re-conveyance, upon the payment of the precise amount of the consideration, and a stipulated monthly interest thereon, is a circumstance favoring the conclusion that the debt subsisted. Ib. 5. A provision in the agreement, for the application of the proceeds of the property, after deducting the expenses of its charge to the payment of the monthly interest, and any excess, upon the principal sum, is a very strong circumstance to show the existence of the debt, and, when taken in connection with the other circumstance above stated, is conclusive that the debt was not extinguished by the conveyance, and that the transaction was intended as a mortgage. Ib. 6. A conveyance, and an attendant agreement for a re-conveyance upon the payment of the amount of the consideration and interest, do not of themselves, in the absence of other circumstances, create a mortgage, but only a defeasible purchase, which should be narrowly watched lest it may be made the means of converting what was in fact intended as security, into an absolute purchase. Ib. 7. Slight circumstances will determine the transaction to be one of mortgage, when that can be done without violence to the understanding of the parties. Ib. 8. It is not necessary to constitute a mortgage, that it should appear upon the face of the papers that there was any personal obligation on the part of the mortgagor to pay the amount of the principal and interest. Such obligation would only enable the mortgagee to look to the mortgagor for any deficiency remaining after the application of the proceeds of sale of the premises to the payment of the sum secured. Ib. 9. The engine and boilers, etc., used in a flour-mill, being permanently fastened to the mill, which had its foundation in the ground: Held, to be fixtures covered by a mortgage upon the premises, though put up after the execution of the mortgage, and held to pass to the purchaser of the mortgaged premises under a decree of foreclosure. Sands et al. v. Pfeiffer, 258. 10. A mortgagor, after a sale of the mortgaged premises under a decree in a suit to foreclose the mortgage, has the right to the use and possession of the mortgaged premises until the execution of the sheriff's deed, but he possesses no right to despoil the property of its fixtures. The deed of the sheriff takes effect by relation at the date of the mortgage, and passes fixtures subsequently annexed by the mortgagor. Ib. 11. A decree of discharge, under the Insolvent Act, from the payment of a note secured by mortgage, does not release the lien the mortgage; it only operates to limit the recovery of the mortgagee to the proceeds of the mortgaged premises. A person claiming an interest in mortgaged premises, subsequent to the mortgage, is a proper party to the foreclosure-suit, but can not be subjected to the costs of the foreclosure beyond those occasioned by his own separate defence. Luning v. Brady and Gilson, 265. 12. Where a debtor, who was at the time insolvent, executed a mortgage of all his property and effects to certain specified creditors, to secure his indebtedness to them, and to protect them from liabilities incurred by their endorsement of his paper: Held, that the mortgage was not an assignment either within the letter or spirit of the thirty-ninth section of the "Act for the relief of Insolvent Debtors and protection of Creditors," and did not create a trust for the use of the mortgagor, prohibited by the Statute of Frauds. Dana v. Stanfords et al., 269. 13. Where a mortgage upon a homestead is executed by the husband, without the wife joining in the execution, it has no validity as a lien upon the premises to the exemption of $5000. Moss v. Warner and Wife, 296. 14. V., a married man, purchased a lot of land of G., and gave a mortgage on the lot to G. for the purchase-money; G. subsequently obtained a decree of foreclosure of the mortgaged premises. On the day advertised for the sale, and just before the sale was to take place, V. borrowed of C. money for the purpose of paying off the mortgage and decree, and agreed to give C. a mortgage on the premises to secure the money so loaned; V. paid off the decree, and G.'s mortgage was satisfied. Within a few minutes thereafter, V. gave a mortgage to C. on the premises, in accordance with his agreement. V.'s wife did not join in the mortgage. At the time of C.'s loan, and the execution of the mortgage therefor, the premises were occupied by V. and his wife as a homestead; V. died soon after, and his wife claimed the premises as a homestead: Held, that C.'s mortgage took the place of G.'s, and was and is a valid lien on the premises, to the extent of the money applied to the satisfaction of G.'s mortgage. Carr v. Caldwell and Vermule, 380. 15. The satisfaction of G.'s mortgage, and the execution of C.'s, were cotemporaneous acts. Ib. 16. In equity and in effect, the advance of the money by C., under the circumstances, to pay off the purchase-money due, was equivalent to so much purchase-money. The debt was, to all intents and purposes, the same, though the condition was changed. Ib. 17. Such a demand is not a claim, in the sense of the statute, against the estate of the deceased. Suit was properly brought in the District Court, and the administrator was a proper party for the purpose of liquidating the amount of the indebtedness. Ib. 18. Where thirteen persons made a joint and several promissory note, payable to three of their number, and all joined in the execution of a mortgage to secure the payment of the note, (the plaintiffs being both payors and payees in the note, mortgagors and mortgagees in the mortgage,) and, subsequently, the payees of the note brought suit against the other makers, and for a foreclosure of the mortgage: Held, that the suit was properly brought, and plaintiffs were entitled to a judgment of foreclosure. McDowell v. Jacobs, 387. 19. The note and mortgage executed by the whole of the associates in this joint enterprise, to three of them, is equivalent to a note and mortgage executed by the defendants to the plaintiffs for an amount less by the proportion of the number of the plaintiffs to the defendants-that is, to three-thirteenths of the sum-and be enforced in like manner as if so executed. Ib. 20. In a suit on a promissory note and mortgage, the Court may give a general judgment for the amount due on the note, and at the same time a decree of foreclosure of the mortgaged premises. Rowe v. Table Mountain Water Co., 441. NEW TRIAL. 1. An order denying a motion for a new trial, when there is no statement settled on file, is erroneous. Hart v. Burnett et al., 64. 2. When it is manifest, from the testimony stated in the record, that the verdict of the jury must have been given under a state of great excitement, preventing a fair and just trial, and the Court below has refused a new trial, this Court will reverse the judgment, and order a new trial. The People v. Acosta, 195. 3. Where the evidence is conflicting, the granting or refusing a new trial rests in the discretion of the Court below, and this Court will not interfere, whether the new trial be granted or refused. Weddle v. Stark, 301. 4. If any errors intervened on the trial of a cause, an order of the Court below, granting a new trial, ought not to be disturbed. Hastings v. Steamer U. S., 341. 5. Where an appeal is taken in the same notice, both from a final judgment and an order refusing a new trial, and it appears that sixty days from the entry of the order for a new trial have previously elapsed, the appeal, so far as the order is concerned, will, on motion, be dismissed. Lower v. Knox, 480. 6. Where a motion for a new trial is denied, and the record brings up the statement filed on the motion, this Court can only examine upon such statement the action of the Court in denying the motion. Ib. 7. Surprise at the ruling of the Court, on the trial, as to the admission of testimony, is not ground for a new trial. Fuller v. Hutchings et al., 523. NOTARY PUBLIC. 1. Where the condition of the bond of a notary public is, that he will "well and truly perform and discharge the duties of a notary public, according to law:" Held, that this clause embraces every act which he is authorized or required by law to do in virtue of his office. Fogarty v. Finlay, 239. 2. Where a notary public, in taking and certifying an acknowledgment to a mortgage, neglected to state in his certificate that the party acknowledging the same was known to him, or was identified by the testimony of a witness examined by him for that purpose: Held, that such notary was guilty of gross and culpable negligence, and is responsible to the party injured for the damages resulting from such negligence. Ib. 3. The purpose of a certificate of acknowledgment is, to entitle the deed to be recorded, and to be admitted in evidence, without further proof. Such a certificate is utterly worthless, for either purpose. Ib. 4. Such neglect on the part of the notary is not excused by the fact that the certificate (which was a printed one, with blanks,) had been partially filled by the attorney of the grantee. Ib. 5. If the notary read the certificate before signing it, the omission must have been known to him; if he did not read it, he is equally guilty of negligence. Ib. 6. A notary holds himself out to the world as a person competent to perform the business connected with his office. By accepting the office and entering upon the discharge of the duties, he contracts with those who employ him that he will perform such duty with integrity, diligence, and skill. Ib. 7. A party employing a notary is not obliged to determine upon the validity or legality of his acts. Ib. 8. Where a mortgaged debt has been lost by such negligence of the notary, the measure of damages is the amount of the debt and interest to be secured by the mortgage. Ib. NOTICE. 1. The actual adverse possession of land by another party, at the time of the conveyance, will be notice to the purchaser, whose grantors only claim by a possession short of the period fixed by the Statute of Limitations. Partridge v. McKinney, 181. 2. Where the whole title of all the parties rests upon possession only, and A sells land to B by a conveyance not recorded, and afterwards, while B is in possession, claiming the entire property as his own, A sells to another party by deed, duly acknowledged and recorded, the second purchaser will be deemed to have purchased with notice, and will not, therefore, be considered a subsequent purchaser in good faith. Ib. 3. In such a case, B will be permitted to show the real state of the case as against the second vendee of A. But where B has left his possession, and at the time when he is out of possession, A sells to another, it is otherwise. Then such second vendee becomes an innocent purchaser for value. Ib. OFFICE. See COMPTROLLER OF STATE. 1. The intention of the Legislature to create the office of gauger by the act of May 3, 1852, entitled "An Act to provide for the Appointment of a Gauger for the Port of San Francisco," is too clear to admit of doubt. The People ex rel. Attorney-General v. Addison, 1. 2. The office having been created, must be presumed to be continuing, unless limited by the terms of the act, or by the nature of the duties to be performed. Ib. 3. There is nothing temporary in the duties of the office. Nor is there anything in the language of the act limiting the duration of the office. Ib. 4. The period of two years, mentioned in the first section, limits only the term of the officer, and not the duration of the office. Ib. 5. Where the appointment to an office is vested in the Governor, with the advice and consent of the Senate, and the term of the incumbent expires during the recess of the Senate, the Governor has the right to fill such |