thority to command, discharge and employ the laborers, the common
master is liable for his misfeasance towards his fellow-laborers in the
exercise of the authority so conferred. Ibid.

MORTGAGE:

1. Where, after a sale of land to make assets, the heir at law mortgages his
interest in the land, the mortgage has the effect of putting the mort-
gagee in the place of the mortgagor, so that he is entitled to what
remains after the payment of the debts to the amount of his mortgage.
Dancy v. Duncan, 111.

2. Where A is indebted to B by notes secured by a mortgage, and C exe-
cutes his notes to B in satisfaction of the debt, who delivers up A's
notes and cancels the mortgage, and A executes his notes, secured by
mortgage to C for the same debt; It was held, that the discharge of
the debt by B is a sufficient consideration, and that C can collect the
notes of A and foreclose the mortgage before he has paid the debt to
B. Alderman v. Rivenbark, 134.

3. Where a mortgage does not properly describe the property mortgaged,
or where, being intended as an agricultural lien, it does not comply
with the requirements of the statute, the objection cannot be made to
the admission of the instrument in evidence, but as to its legal suffi-
ciency as a conveyance. Spivey v. Grant, 214.

4. Where a mortgage is made of personal property for the purpose of ob-
taining supplies to make a crop with, which mortgaged property is
claimed by a third party, it is competent evidence to show by the
mortgagor any matters necessary to a full understanding of the case.
Ibid.

5. Where the property is described in a mortgage as one horse," and the
mortgagor only has one horse, the description sufficiently points out
the property conveyed, and parol evidence is admissible to identify it,
but if he has more than one horse, then it is a patent ambiguity, and
nothing passes. Ibid.

6. Where a mortgage conveyed

one yoke of oxen," and it appeared that

the mortgagor owned four oxen when the mortgage was made, a charge
which instructed the jury that the oxen would none of them be in-
cluded, unless they were satisfied that some particular two were usually
worked together as a yoke, was held to be correct. Ibid.

7. Where an instrument is intended by the parties to operate as an agri-
cultural lien under the statute, but it fails to set out some essential
matter so that it cannot take effect as such statutory lien, it will yet
be given effect as a common law mortgage, if in form sufficient for
that purpose. Ibid.

8. Where several persons unite in executing a bond to a commission mer-
chant for supplies to be furnished them, and one of them gives a chat-
tel mortgage to secure the amounts advanced to him, which mortgage
erroneously recites the amount of the bond, but truly specifies the
amount of the advances made to the mortgagor; It was held, that the
variance was immaterial. Ibid.

9. Where a mortgage is executed to secure a usurious note, the usury only
affects the interest and does not impair the validity of the mortgage.
Ibid.

10. Where the property conveyed in a mortgage was described as “ one bay
mule," when in fact it was a black mule, the property in the black
mule will pass, if it is admitted or proved that the mule in controversy
was the one really intended to be covered by the mortgage. Harris
v. Woodard, 232.

II. Whenever it becomes necessary to identify the property conveyed in a
mortgage from property of a similar kind, or to show what was in-
tended to be conveyed, parol evidence is admissible. Ibid.

12. Where a party sold a mule, and retained title until the purchase money
was paid, and afterwards took a mortgage on the same mule, and both
in the sale note which recited that the title was retained, and in the
mortgage, the mule was incorrectly described as a bay mule, when in
fact it was a black one, and the mortgagor afterwards sold the mule,
which was purchased from his vendee by the defendant; It was held,
that the defendant, although acting in good faith, and in ignorance of
the fact that it did not belong to his vendor, got no title. Ibid.

13. The rule as to what are fixtures is the same between vendor and vendee
and mortgagor and mortgagee, and whatever would pass in an abso-
lute sale to a vendee will pass as a security to a mortgagee.
Foote v.
Gooch, 265.

14. Where a mortgagor left in possession improves the mortgaged premises
after the execution of the mortgage by the erection of new works and
the introduction of new machinery, which are intended to be a perma-
nent annexation to the freehold, he cannot remove such fixtures and
thus impair the increased security, and it seems that this rule applies
even to trade fixtures. Ibid.

15. The intent with which the annexation is made to the freehold enters
largely into the question of the right to remove, and if the fixture is
made for the purpose of permanently improving the freehold a mort-
gagor cannot remove it. Ibid.

16. Where one who knows of a prior unregistered deed of trust or mort-
gage procures a mortgage for his own benefit on the same property,

which is registered first, he gets the first lien on the property, unless
he used fraud to prevent the registration of the mortgage which is first
in date. Bank v. M'f'g Co., 298.

17. Where a bond secured by a mortgage is surrendered and a new bond
taken in its place, the new bond will be secured by the mortgage, un-
less it appears that an extinguishment of the debt was intended. Ibid.
18. Two corporations were under the same management, and one of them
executed a mortgage on its property to secure a debt, and afterwards
this debt was assumed by the other corporation, which executed a
mortgage on its property to secure it, and the mortgage on the prop-
erty of the original debtor corporation was cancelled. After the ex-
piration of some time, the original debtor corporation again assumed
the payment of this debt, executed a new mortgage to secure it, and
the mortgage on the second corporation was cancelled; It was held,
that under the provisions of our registration laws, as against creditors,
the cancelled mortgages were inoperative, and the secured creditor
could claim no liens or priorities under them. Ibid.

19. As a general rule in the construction of statutes, a proviso will be con-
sidered as a limitation upon the general words preceding, and as ex-
cepting something therefrom, but this rule is not absolute, and the
meaning of the proviso will be ascertained by the language used in it.

Ibid.

20. The provisions of Bat. Rev., ch. 25. §48, (The Code, $685,) apply to
corporations generally, and are not restricted to those only formed by
foreclosures under a deed of trust of an insolvent or expiring corpora-
tion. Ibid.

21. So, where a corporation made a mortgage for the purpose of securing
bonds to raise money; It was held, that the debts owing by such cor-
poration at the time the mortgage was executed were entitled to
priority over the bonds secured by the mortgage. Ibid.

22. The act of 1879, which provides that mortgages executed by corpora-
tions on their property or earnings shall not exempt the property or
earnings from executions for the satisfaction of a judgment obtained
for labor performed, materials furnished, or for torts committed by
such corporation, so far as it relates to labor and materials furnished,
is only intended to more effectually secure the lien given by the Con-
stitution and statutes to laborers and material-men, and was not in-
tended to create a lien in favor of parties who furnish machinery, &c..
to the corporation upon its personal credit. Ibid.

23. A mortgagee, after the death of the mortgagor, has a right to at once
foreclose the mortgage against the heirs at law, and this without regard
to the right of the heirs to have the mortgage debt paid out of the
personal property of the decedent. Fraser v. Bean, 327.

24. The administrator is not a necessary party in an action by a mortgagee
to foreclose a mortgage after the death of the mortgagor. Ibid.

25. An action to foreclose a mortgage, where no part of the mortgage debt
has been paid and the mortgagor remains in possession, is barred in
ten years from the forfeiture, and the same rule applies where the
mortgagor died before the time expired and the action is brought
against his heirs. Ibid.

26. The provisions of The Code, 152, par. 3, only bars an action to fore-
close the mortgage, and does not bar an action to recover the debt
secured by the mortgage. Ibid.

27. Where the heir successfully pleads the statute of limitation to an action
brought to foreclose a mortgage executed by his ancestor, but a judg-
ment for the debt is obtained against the administrator; quære, what
will be the result of a proceeding by the administrator to sell the land
to make assets to pay the judgment. Ibid.

28. Where a party establishes an apparent right to land, and the person in
possession is insolvent, a receiver will be appointed to take charge of
the rents and profits during the pendency of the action. McNair v.
Pope, 502.

29. Quære, whether a deed executed by the executor of a deceased mortga-
gee, who undertook to sell the land in pursuance of the mortgage to
his testator, would establish such apparent right, but when the pur-
chaser at such sale also set up a release from the mortgagor he makes
out an apparent title and is entitled to a receiver, although the release
is attacked for fraud. Ibid.

MOTION IN THE CAUSE:

I. Where it is sought to set aside a judgment or decree on the ground of
irregularity, a motion in the cause, and not a new action, is the ap-
propriate remedy, although the action may be at an end. Morris v.
White, 91.

2. Where the action is still pending, any relief against a judgment or de-
cree rendered therein must be by a motion in the cause, and not by a
new action. Ibid.

3. It is well settled, that a motion in the cause, and not a new action, is
the proper remedy to set aside an irregular judgment, whether the
irregularity appears on the face of the record or not, even although
the action is at an end. It is otherwise when it is sought to attack a
judgment for fraud, which must be done by a new action, if the action
in which the judgment sought to be attacked is at an end. Syme v.
Trice, 243.

MUNICIPAL CORPORATION:

1. A majority of the qualified voters and not merely of those voting, must
vote in favor of the measure in order to allow a municipal corporation
to pledge its faith, loan its credit or contract any debt, under the pro-
visions of Art. 7, $7, of the Constitution. Southerland v. Goldsboro,

49; Duke v. Brown, 127.

2. To constitute a person a qualified voter within the meaning of the Con-
stitution, his name must be entered on the registration book. Ibid;
Markham v. Manning, 132.

3. Where there is an inherent constitutional defect in the statute author-
izing the issue of municipal bonds, a purchaser of the bonds takes
them with notice of their illegal origin, for purchasers must inquire
into the authority by which the bonds are issued, and are held to notice
of any defect therein. Duke v. Brown, 127.

4. The word "estate" has a broader meaning than the word "property."
The latter word does not include choses in action, unless there be
something in the context which would require it to receive this inter-
pretation. Vaughan v. Murfreesboro, 317.

5. So where a statute allowed a municipal corporation to levy a tax upon
all persons and property within the town; It was held, that this did
not authorize a tax on solvent credits, money, or bonds. Ibid.

6. Where an excavation was allowed to remain open and unguarded in a
town, which, however, was some distance from the sidewalk, and its
existence and unprotected condition was well known to the plaintiff,
who carelessly fell into it and was injured; It was held, that he could
Walker v. Reidsville, 382.

not recover.

7. Where the defendant executed his bond to a municipal corporation for
a license tax, instead of paying cash, he is estopped from setting up as
a defence that the municipal authorities had no power to take such
bond, and issue the license, and consequently that the bond was void.
Hendersonville v. Price, 423.

8. While the Board of Commissioners of a municipal corporation cannot
issue a license to retail liquors for a longer period than one year, the
time need not begin and terminate with the term of office of the Board
which grants it, for they can grant a license which extends beyond their
term of office, provided that it does not exceed one year, and does not
begin to take effect after their term of office has expired. Ibid.

9. Where County Commissioners ascertain and declare the result of an
election, their action and declaration cannot be attacked collaterally,
but it may by a direct proceeding for that purpose.
McDowell v.
Cons. Co., 514.