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sidered as the principal matter, and the failure to perform at the appointed time a matter merely requiring compensation by interest in the way of damages for the delay. This right to redeem became known as the equity of redemption, and has been limited by statute, a common period being three years. Courts of law have now adopted the doctrines of equity with respect to redemption, and in other respects to a considerable extent. See 1 Washburn, Real Prop, 477.
Jones, Eq. No. C. 172, 256; 33 Penn. St. 158;
An equitable mortgage is one in which the mortgagor does not actually convey the property, but does some act by which he manifests his determination to bind the same as a security. See EQUITABLE MORTGAGE.
A legal mortgage is a conveyance of property intended by the parties at the time of inaking it to be a security for the performance of some prescribed act. 1 Washburn, Real Prop. 479.
2. All kinds of property, real or personal, which are capable of an absolute sale, may be the subject of a mortgage: rights in remainder and reversion, franchises, and choses in action, may, therefore, be mortgaged. But a mere possibility or expectancy, as that of an heir, cannot. 2 Story, Eq. Jur. 1012; 4 Kent, Comm. 144; 1 Powell, Mortg. 17, 23;
3 Mer. Ch. 667.
As to the form, such a mortgage must be in writing, when it is intended to convey the legal title. 1 Penn. 240. It is either in one single deed which contains the whole contract,-and which is the usual form, or it is two separate instruments, the one containing an absolute conveyance and the other a defeasance, 2 Johns. Ch. N. Y. 189; 15 Johns. N. Y. 555; 3 Wend. N. Y. 208; 7 id. 248; 2 Me. 152; 11 id. 346; 12 Mass, 456; 7 Pick. Mass. 157; 3 Watts, Penn. 188; 6 id. 405; and generally, whenever it is proved that a conveyance was made for purposes of security, equity regards and treats it as a mortgage, and attaches thereto its incidents. 9 Wheat. 489; 1 How. 118; 12 id. 139; 2 Des. Eq. So. C. 564; 1 Hard. Ky. 6; 2 Cow. N. Y. 246; 9 N. Y. 416; 25 Vt. 273; 1 Md. Ch. Dec. 536; 3 id. 508; 1 Murph. No. C. 116; 10 Yerg. Tenn. 376; 3 J. J. Marsh. Ky. 353; 5 Ill. 156; 4 Ind. 101; 2 Pick. Mass. 211; 20 Ohio, 464; 36 Me. 115; 1 Cal. 203; 1 Wisc. 527; 9 Serg. & R. Penn. 434. In law, the defeasance must be of as high a nature as the conveyance to be defeated. 1 N. H. 39; 13 Pick. Mass. 411; 22 id. 526; 43 Me. 206; 2 Johns. Ch. N. Y. 191; 7 Watts, Penn. 361. The rule as to the admission of parol evidence to establish the character of a conveyance as a mortgage varies in the different states. See 26 Ala. N. s. 312; 29 id. 254; 7 Ark. 505; 18 id. 34; 8 Cal. 424; 9 id. 538; 8 Conn. 186; 15 Ill. 519, 528; 4 Blackf. Ind. 67; 2 B. Monr. Ky. 72; 9 Dan. Ky. 109; 36 Me. 562; 43 id. 206; 6 Harr. & J. Md. 138, 435; 3 Md. Ch. Dec. 508; 13 Pick. Mass. 411; 22 id. 526; 3 Mich. 645; 23 Miss. 375; 10 Mo. 483; 22 id. 77; 11 N. H. 571; Saxt. Ch. N. J. 534; 10 Barb. N. Y. 582; 1 Johns. Ch. N. Y. 425, 594; 5 Paige, Ch. N. Y. 9; 9 N. Y. 416; 2
The mortgagee, at law, is the owner of the land, subject, however, to a defeat of title by performance of the condition, with a right to enter at any time. See 21 N. H. 460; 9 Conn. 216; 19 Me. 53; 2 Den. N. Y. 170. He is, however, accountable for the profits before foreclosure. 31 Me. 104; 32 id. 97; 5 Paige, Ch. N. Y. 1; 11 id. 436; 24 Conn. 1:1 Halst. Ch. N. J. 346; 2 id. 548; 2 Cal. 387; 6 Fla. 1; 1 Washburn, Real Prop. 577. The different states fluctuate somewhat between the rules of equity and those of law, or, rather, have engrafted the equitable rules upon the legal to an unequal extent. 21 Penn. St. 295; 10 Ga. 65; 27 Barb. N. Y. 503; 3 Mich. 581; 3 Greene, Iowa, 87; 4 Iowa, 571; 4 M'Cord, So. C. 336; 9 Cal. 123, 365; 1 Washburn, Real Prop. 517 et seq.
4. Assignment of mortgages must be made in accordance with the requirements of the Statute of Frauds. 15 Mass. 233; 17 id. 419; 6 Gray, Mass. 152; 32 Me. 197; 33 id. 196; 18 Penn. St. 394; 7 Blackf. Ind. 210; 5 Den. N. Y. 187; 3 Ohio St. 471; 27 N. II. 300; 5 Halst. Ch. N. J. 156; 21 Ala. N. s. 497; 1 Washburn, Real Prop. 520.
Foreclosure may result from occupation by the mortgagee for twenty years, or a period equal to the length of time necessary to bar a writ of entry, 2 Metc. Mass. 26; by bill for strict foreclosure to obtain possession, which is the common practice in England and in some of the United States, a time being generally allowed for redemption before the decree is made absolute, see Williams, Real Prop. 356; 1 Washburn, Real Prop. 600, for a full abstract of the laws of the various states; by bill to obtain a decree for sale; by entry and holding possession for a term of years fixed by law; and by a sale under a power of attorney for the purpose, inserted in the original conveyance.
Consult Washburn, Williams, on Real Property; Hilliard, Coote, on Mortgages; Story, Equity; Kent, Comm. Lect. I.-VIII.
MORTGAGEE. He to whom a mortgage is made. See MORTGAGE.
MORTGAGOR. He who makes a mort- tute. 4 Clark & F. Hou. L. 323; 11 Bligh. N. s. 62. gage. See MORtgage.
3. When the father dies without leaving a testamentary guardian at common law, the mother is entitled to be the guardian of the person and estate of the infant until he arrives at fourteen years, when he is able to choose a guardian. Littleton, 8 123; 3 Coke, 38; Coke, Litt. 84b; 2 Atk. Ch. 14; Comyns, Dig. Feme (B, D, E); 7 Ves. Ch. 348. See 10 Mass. 135, 140; 2 id. 415; Harp. So. C. 9; 1 Root, Conn. 487; 22 Barb. N. Y. 178; 2 Dutch. N. J. 388; 2 Green, Ch. N. J. 221; 3 Dev. & B. No. C. 325; 9 Ala. 197. The right of the widowed mother to the earnings and services of her minor child does not appear to have been precisely determined; but it is by no means so absolute as that of the father. 31 Me. 240; 15 N. H. 486; 4 Binn. Penn. 487; 3 Hill, N. Y. 400; 14 Ala. 123; 15 Mass. 272; 16 id. 28; Harp. So. C. 9. without leaving a testamentary guardian, 4. In Pennsylvania, when the father dies the orphans' court will appoint a guardian until the infant shall attain his fourteenth year. During the joint lives of the parents, the father has the only control and custody of the children, except when in special cases, as when they are of tender years, or when the habits of the father render him an unsuitable guardian, the mother is allowed to have possession of them. 6 Rich. Eq. So. C. 344; 1 P. Browne, Penn, 143; 3 Binn. Penn, 320; 2 Serg. & R. Penn. 174; 13 Johns. N. Y. 418; 2 Phill. 786; 2 Coll. 661.
5. The mother of a bastard child, as natural guardian, has a right to the custody and control of such child, even as against the putative father, and is bound to maintain it, 2 Mass. 109; 12 id. 387, 433; 2 Johns. N. Y. 375; 15 id. 208; 6 Serg. & R. Penn. 255; but after her death the court will, in its discretion, deliver such child to the father in opposition to the claims of the maternal grandfather. 1 Ashm. Penn. 55; Strange, 1162. See BASTARD.
MORTIFICATION. In Scotch Law. A term nearly synonymous with mortmain. MORTMAIN. A term applied to denote the possession of lands or tenements by any corporation, sole or aggregate, ecclesiastical or temporal. These purchases having been chiefly made by religious houses, in consequence of which lands became perpetually inherent in one dead hand, this has occasioned the general appellation of mortmain to be applied to such alienations. 2 Blackstone, Comm. 268; Coke, Litt. 2 b; Erskine, Inst. 2. 4. 10; Barrington, Stat. 27, 97. See Story, Eq. Jur. 1137; Shelford, Mortm.
MORTUARY. In Ecclesiastical Law.
A burial-place. A kind of ecclesiastical
MOTHER. A woman who has borne a
2. It is generally the duty of a mother to support her child, when she is left a widow, until he becomes of age or is able to maintain himself, 8 Watts, Penn. 366; 16 Mass. 135; 3 N. H. 29; 4 id. 95; and even after he becomes of age, if he be chargeable to the public, she may, perhaps in all the states, be compelled, when she has sufficient means, to support him. But when the child has property sufficient for his support, she is not, even during his minority, obliged to maintain him, 1 Brown, Ch. 387; 2 Mass. 415; 4 id. 97; but will be entitled to an allowance out of the income of his estate, and, if need be, out of the principal, for his maintenance. 2 Fla. 36; 2 Atk. Ch. 447; 5 Ves. Ch. 194; 7 id. 403; 3 Dutch. N. J. 388. During the life of the father she is not bound to support her child, though she have property settled to her separate use and the father be desti
MOTHER-IN-LAW. The mother of one's wife or of one's husband.
MOTION. In Practice. An application to a court by one of the parties in a cause, or his counsel, in order to obtain some rule or order of court which he thinks becomes necessary in the progress of the cause, or to get relieved in a summary manner from some matter which would work injustice.
When the motion is made on some matter of fact, it must be supported by an affidavit that such facts are true; and for this purpose. the party's affidavit will be received, though it cannot be read on the hearing. 1 Binn. Penn. 145; 2 Yeates, Penn. 546. See 3 Blackstone, Comm. 305; 2 Sellon, Pract. 356; 15 Viner, Abr. 495; Graham, Pract. 542; Smith, Chanc. Pract. Index.
MOTIVE. The inducement, cause, or reason why a thing is done.
See CAUSE; CONSIDERATION; MISTAKE; WITNESS.
MOVABLES. Such subjects of property as attend a man's person wherever he goes, in contradistinction to things immovable.
In Scotch Law. Every right which a man can hold which is not heritable: opposed to heritage. Bell, Dict.
2. Things movable by their nature are The subject admits of no general rules, but such as may be carried from one place to anthe courts seem to consider the circumstances other, whether they move themselves, as of each case with reference to avoiding on one cattle, or cannot be removed without an extra-hand a multiplicity of suits, and on the other neous power, as inanimate things. So in the inconvenience and hardship to the defendants civil law mobilia; but this term did not pro- from being obliged to answer matters with perly include living movables, which were which they have, in great part, no connec termed moventia. Calvinus, Lex. But these words, mobilia and moventia, are also used tion, and the complication and confusion of evidence. 1 Mylne & C. Ch. 618; 5 Sim. Ch. synonymously, and in the general sense of 288; 3 Stor. C. C. 25; 2 Gray, Mass. 471; "movables." Ibid. Movables are further distinguished into such as are in possession, Story, Eq. Plead. 274, 530. It is to be taken advantage of by demurrer, 2 Anstr. or which are in the power of the owner, as a horse in actual use, a piece of furniture in 469, or by plea and answer previous to a a man's own house, or such as are in the hearing, Story, Eq. Plead. 530, n., or by the court of its own accord at any time. 1 Mylne possession of another, and can only be recovered by action, which are therefore said & K. 546; 3 How. 412; 5 id. 127. See, geneto be in action, as a debt. See PERSONAL rally, Story, Eq. Plead. 8 274-290, 530-540; 4 Bouvier, Inst. n. 4243. PROPERTY; Fonblanque, Eq. Index; Powell, Mortg. Index; 2 Sharswood, Blackst. Comm. 384; La. Civ. Code, art. 464-472; 1 Bouvier, Inst. n. 462; 2 Stephen, Comm. 67; Sheppard, Touchst. 447; 1 P. Will. Ch. 267.
3. In a will, "movables" is used in its largest sense, but will not pass growing crop, nor building-materials on ground. 2 Williams, Exec. 1014; 3 A. K. Marsh. Ky. 123; 1 Yeates, Penn. 101; 2 Dall. Penn. 142.
MULATTO. A person born of one white and one black parent. 7 Mass. 88; 2 Bail.
So. C. 558.
MULCT. A fine imposed on the conviction of an offence.
An imposition laid on ships or goods by a company of trade for the maintenance of consuls and the like. It is obsolete in the latter sense, and but seldom used in the former.
Glanville, lib. 7, c. 1. If the said lands "should,
MULIER. Of ancient time, mulier was taken for a wife, as it is commonly used for a woman, and sometimes for a widow; but it has been held that a virgin is included under the name mulier. Coke, Litt. 170, 243; 2 Blackstone, Comm. 248.
The term is used always in contradistinction to a bastard, mulier being always legitimate, Coke, Litt. 243, and seems to be a word corrupted from melior, or the French meilleur, signifying lawful issue born in wedlock. But by Glanville, lawful issue are said to be mulier, not from melior, but because begotten è muliere, and not ex concubina, for he calls such issue filios mulieratos, opposing them to bastards.
MULTIFARIOUSNESS. In Equity
The uniting in one bill against a single de-
MULTIPLE POINDING. In Scotch Law. Double distress: a name given to an action which may be brought by a person in possession of goods claimed by different persons pretending a right thereto, calling the claimants and all others to settle their claims, so that the party who sues may be liable only "in once and single payment." Bell, Dict.; 2 Bell, Comm. 299; Stair, Inst. 3. 1. 39.
MULTITUDE. The meaning of this word is not very certain. By some it is said that to make a multitude there must be ten persons at least, while others contend that the law has not fixed any number. Coke, Litt.
to hold municipal offices. Calvinus, Lex.
Voc. Jur. Utr. ;
Owing to the difficulty or impossibility of removing them, secondary evidence may be MUNICIPAL. Strictly, this word ap- given of inscriptions on walls, fixed tables, plies only to what belongs to a city. gravestones, and the like. 2 Stark. 274.
Among the Romans, cities were called municipia: these cities voluntarily joined the Roman republic in relation to their sovereignty only, retaining their laws, their liberties, and their magistrates, who were thence called municipal magistrates. With us this word has a more extensive meaning: for ex
ample, we call municipal law not the law of a city only, but the law of the state. 1 Blackstone, Comm. Municipal is used in contradistinction to international: thus, we say, an offence against the law of nations is an international offence, but one com
MURDER. In Criminal Law. The wilful killing of any subject whatever, with malice aforethought, whether the person slain shall be an Englishman or a foreigner. Hawkins, Pl. Cr. b. 1, c. 13, s. 3. Russell says, the killing of any person under the king's peace, with malice prepense or aforethought, either express or implied by law. 1 Russell, Crimes, 421; 5 Cush. Mass. 304. When a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied. Coke, 3d Inst. 47.
mitted against a particular state or separate community is a municipal offence.
public corporation, created by government for political purposes, and having subordinate and local powers of legislation: e.g. a county, town, city, etc. 2 Kent, Comm. 275; Angell & A. Corp. 9, 29; 1 Baldw. C. C. 222. An incorporation of persons, inhabitants of a particular place, or connected with a particular district, enabling them to conduct its local civil government. Glover, Mun. Corp. 1. MUNICIPAL LAW. In contradistinction to international law, is the system of law proper to any single nation or state. It is the rule or law by which a particular district, community, or nation is governed. 1 Blackstone, Comm. 44.
Municipal law contrasts with international law, in that it is a system of law proper to a single nation, state, or community. See MUNICIPAL LAW. In any one state the municipal law of another state is foreign law. See FOREIGN LAW. A conflict of laws arises where a case arising in one state involves foreign persons or interests, and the foreign and the domestic law do not agree as to the proper rule to be applied. See CONFLICT OF LAWS.
MUNIMENTS. The instruments of writing and written evidences which the owner of lands, possessions, or inheritances has, by which he is enabled to defend the title of his estate. Termes de la Ley; Coke,
3d Inst. 170.
2. According to Coke's definition, there must be, first, sound mind and memory in the agent. By this is understood there must be a will and legal discretion. Second, an actual killing; but it is not necessary that it should be caused by direct violence: it is sufThe various provinces of municipal law are ficient if the acts done apparently endanger characterized according to the subjects with life, and eventually prove fatal. Hawkins, which they respectively treat: as, criminal or Pl. Cr. b. 1, c. 31, s. 4; 1 Hale, Pl. Cr. 431; penal law, civil law, military law, and the 1 Ashm. Penn. 289; 9 Carr. & P. 356; 2 like. Constitutional law, commercial law, Palm. 545. Third, the party killed must parliamentary law, and the like, are depart-have been a reasonable being, alive and in ments of the general province of civil law, as distinguished from criminal and military law. MUNICIPALITY. The body of officers, taken collectively, belonging to a city, who are appointed to manage its affairs and defend its interests.
the king's peace. To constitute a birth, so as to make the killing of a child murder, the whole body must be detached from that of the mother; but if it has come wholly forth, but is still connected by the umbilical cord, such killing will be murder. 2 Bouvier, Inst. n. 1722, note. Foeticide would not be such a killing: he must have been in rerum natura. Fourth, malice, either express or implied. It is this circumstance which distinguishes murder from every description of homicide. See
This latter definition, which has been adopted by Blackstone, 4 Comm. 195; Chitty, 2 Crim. Law, 724, and others, has been severely criticized. What, it has been asked, are sound memory and understanding? What has soundness of memory to do
with the act? be it ever so imperfect, how does it affect the guilt? If discretion is necessary, can the crime ever be committed? for is it not the highest
indiscretion in a man to take the life of another,
and thereby expose his own? If the person killed be an idiot or a new-born infant, is he a reasonable creature? Who is in the king's peace? What is malice afterthought? Can there be any malice aforethought? Livingston, Pen. Law, 186. It is, however, apparent that some of the criticisms are merely verbal, and others are answered by the construction given in the various cases to the requirements of the definition. See, especially, 5 Cush. Mass. 304.
3. In some of the states, by legislative enactments, murder has been divided into degrees. In Pennsylvania, the act of April 22, 1794, 3 Smith, Laws, 186, makes "all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson,
rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried shall, if they find the person guilty thereof, ascertain in their verdict whether it be murder of the first or second degree; but if such person shall be convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and give sentence accordingly." Many decisions have been made under this act, to which the reader is referred. See Wharton, Crim.
Similar enactments have been made in Massachusetts, Tennessee, and Virginia. 3 Yerg. Tenn. 283; 5 id. 340; 6 Rand. Va. 721. See, generally, Bishop, Gabbett, Russell, Wharton, Crim. Law; Roscoe, Crim. Ev.; Archbold, Crim. Pract.; Hawkins, Hale, Pleas of the Crown.
In Pleading. In an indictment for murder, it must be charged that the prisoner "did kill and murder" the deceased; and unless the word murder be introduced into the charge, the indictment will be taken to charge manslaughter only. Foster, Crim. Law, 424; Yelv. 205; 1 Chitty, Crim. Law, *243, and the authorities and cases there cited.
TO MUSTER. To collect together and exhibit soldiers and their arms. To employ recruits, and put their names down in a book to enrol them.
MUTATION. In French Law. This term is synonymous with change, and is particularly applied to designate the change which takes place in the property of a thing in its transmission from one person to another. Permutation therefore happens when the owner of the thing sells, exchanges, or gives it. It is nearly synonymous with transfer. Merlin, Répert.
MUSTER-ROLL. A written document containing the names, ages, quality, place of residence, and, above all, place of birth, of every person of the ship's company. It is of great use in ascertaining the ship's neutrality. Marshall, Ins. b. 1, c. 9, s. 6, p. 407; Jacobson, Sea Laws, 161; 2 Wash. C. C. 201. MUSTIRO. A name given to the issue of an Indian and a negro. Dudl. So. C. 174.
MUTATION OF LIBEL. In Practice.
An amendment allowed to a libel, by which there is an alteration of the substance of the libel, as by propounding a new cause of action, or asking one thing instead of another. 167; 1 Paine, C. C. 435; 1 Gall. C. C. 123; Dunlap, Adm. Pr. 213; Law, Eccl. Law, 165–
1 Wheat. 261.
MUTE (mutus). When a prisoner upon his arraignment totally refuses to answer, insists upon mere frivolous pretences, or refuses to put himself upon the country, after pleading not guilty, he is said to stand mute.
MURDRUM. In Old English Law. During the times of the Danes, and afterwards till the reign of Edward III., murdrum was the killing of a man in a secret manner; and in that it differed from simple homicide.
In the case of the United States vs. Hare et al., Circuit Court, Maryland Dist. May sess. 1818, the prisoner standing mute was considered as if he had pleaded not guilty. The act of congress of March 3, 1825, 3 Story, U. S. Laws, 2002, has since provided as follows: 14, That if any person, upon his or her arraignment upon any indictment before any court of the United States for any offence
When a man was thus killed, and he was unknown, by the laws of Canute he was presumed to
be a Dane, and the vill was compelled to pay forty not capital, shall stand mute, or will not an
marks for his death. After the conquest, a similar law was made in favor of Frenchmen, which was abolished by 3 Edw. III.
The fine formerly imposed in England upon a person who had committed homicide per infortunium or se defendendo. Prin. Pen. Law, 219, note r.
swer or plead to such indictment, the court
MUTATIS MUTANDIS (Lat.). The necessary changes. This is a phrase of frequent practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like.
In former times, in England, the terrible pun
MUSICAL COMPOSITION. The act of congress of February 3, 1831, authorizes the granting of a copyright for a musical composition. A question was formerly agi-ishment or sentence of penance or peine (protated whether a composition published on a single sheet of paper was to be considered a book; and it was decided in the affirmative. 2 Campb. 28, n.; 11 East, 244. See COPY
bably a corrupted abbreviation of prisone) fort not plead, and stood obstinately mute. This et dure was inflicted where a prisoner would judgment of penance for standing mute was as follows: that the prisoner be remanded to the prison from whence he came, and put into a low, dark chamber, and there be laid on his back, on the bare floor, naked,-unless where decency forbids; that there be placed upon his body as great a weight of iron as he could bear; and, more, that he have no sustenance, save only on the first day three morsels of the worst bread, and on the second day three draughts of standing water that should be nearest to the prison-door; and in this situation this should be alternately his daily diet till he died or (as anciently the judgment ran) till he answered. Britton,