15. But when on an entire contract by covenant to pay a particular sum for the hire of two slaves for a certain term, one of the slaves dies, and the other is taken by the owner, out of the possession of the hirer without his consent, before the expiration of the term, the covenant of the hirer to pay for the hire of both slaves, is thus discharged. Ibid. 16. The capacity of a slave, so far as relates to a bequest of freedom, forbids his being a cestui qui trust: therefore, when one by will bequeathed freedom to his slaves-it was held they were not entitled to freedom, but must be held subject to distribution according to law, as in cases of intestacy. Trotter, adm. v. Black adm. & wife, 6 P. 269. 17. The first article in the constitution is to be considered as equivalent to inhibiting emancipation in any other manner, than by a strict compliance with the statute of the State. Ibid. 18 Under the statute of 1834, slaves cannot be emancipated by will, either absolutely or upon condition. 1bid. 19. Slaves in this country are not analogous in their condition to the villeins of feudal ages, but are more aptly compared to the slave of the ancient Greeks or Romans. They have not capacity to take property either by purchase or descent; and, as regards their transmission from owner to owner, they are considered personal property-things, rather than persons. Ibid. MERGER. 1. It is a rule applying to conveyances of both real and personal property, that when a legal and an equitable title are united, the latter are merged in the former-so a cestui qui trust, for whose security a deed of trust has been executed, may take an absolute bona fide conveyance of the trust estate, and the matter becomes merged in the former. Standefer v. Chisholm, 1 S. & P. 449. 2. Trespass for killing a slave is merged in the felony, and in an action for such trespass, it must be averred that the party killing has been tried for the felony. Middleton v. Holmes, 3 P. 424. MISTAKE. 1. A party under mistake as to the law of his contract, voluntarily makes payment, equity will not decree restitution. Jones v. Watkins and 12 other cases, 1 . 81. 2. By mistake the condition of an administrator's bond was written in the name of the deceased, instead of the name of the administrator, the other part, and the signatures being correctly written. This did not vitiate the bond, which might be declared on as if in proper form. Moore, et al. v. Chapman, Judge C. C. 2 S. 466. 3. When one beneficially interested in a cause, from ignorance of the law surrenders his rights, he cannot hold the opposite party to a knowledge of the law, and charge him for the loss occasioned by his own indiscretion. Harrison v. Marshal, use of, 6 P. 65. See Chancery. MILLS AND MILLERS. 1. The statute requiring appeals from justices of the peace to be tried according to their equity and justice, does not include cases when such justices disregard the course of law and assume authority not conferred upon them. Hemphill, et al v. Coates, 4 S. & P. 125. 2. As in proceedings before a justice against a miller for unlawful taking of toll, when there is substantial irregularities in the whole case: the fact that the warrant is issued by one justice, indorsed by a second in another county, and a trial had before a third, in the county from whence issued, will be considered sufficient irregularity to quash the proceedings. Ibid. 3. In an action on the case against one for obstructing plaintiff in the use of a mill, evidence is not admissible to show that proceedings are pending between plaintiff and defendant in the county court, on an application to establish a mill; and that the defendant made the first application to the county court for a writ ad quod damnum. Hendrick v. Johnson, 5 P. 208. 4. Appeals from the determination of the county court under the statute 1812, must be made in term time, and the evidence taken, if certified to by the judge, in the absence of a bill of exceptions, will be presumed to be all the evidence acted on by the county court. Hendrick v. Johnson, 6 P. 472. 5. A trial de novo on an appeal can never be had in the circuit court unless the statute giving the right of appeal expressly directs such a course to be pursued, and after the case is removed by appeal, errors must be assigned as in other cases, and there is no need of making the number of assignments of error equal the number of facts involved. Ibid. 6. The right to the use of the waters of a stream is common to all the owners of the adjacent lands, and is incidental to the possession of the lands, and a severance of the right can only be had by consent of those interested; and the United States have no other rights as the owners of lands than is common to land holders in the State, and when they grant a part of their domain, only such rights as are incidental to the land pass to the purchaser. Ibid. 7. The statute 1812, does not contemplate the exercise of any discretion by the county court in proceedings under a writ of ad quod damnum, and if none of the injuries named in the statute are likely to ensue, the application for the erection of a mill must be granted, if otherwise, rejected. The statute does not provide for the determination of conflicting claims in relation to the appropriation, under the statute, of the same water power. Ibid. 8. The first applicant for the writ under the statute, acquires an inchoate right to the privileges conferred by the statute, and if he proceed in the case with reasonable diligence, he is entitled to a decree establishing his mill; adverse rights are to be compensated by damages assessed by the jury of inquest. Ibid. 9. A land proprietor who apprehends injury from the contemplated erection of a mill, may, by propounding his interest, litigate questions with applicant in the county court at any time before a final decree. Ibid. 10. The applicant for the privileges of the writ ad quod damnum, must conform in all things to the judgment of the court granting his application, or rely upon his common law rights; and if he does not conform to the judgment of the competent tribunals, or anticipate their favorable determination, and by erecting his mill causes injury to others, those injured are entitled to all the common law remedies against him. Ibid. 11. When two records are issued on the same day, parol evidence is admissible to show which was prior in time. It is the duty of the clerk of the county court to issue writs ad quod damnum, and an error of the clerk cannot have the effect of prejudicing the rights of a party suing out such writ; and if such writ, issued under the statute 1812, be quashed, for the reason that a blank was left in the same when issued, the party making the application, will not be prevented suing out a new writ in any reasonable time after the first writ is quashed, supported by his first application. Ibid. 12. It is wholly unnecessary to insert any day in a writ of ad quod damnum for holding the inquest, when the application is made by one holding the lands on both sides of a water course, and when the application does not seek for the condemnation of lands belonging to others for an abutment, ditch or canal. The only reason why a day, in such cases as seek a condemnation, is required to be inserted, is that the sheriff is required to give notice to the proprietors of lands sought to be condemned, ten days before the time at which the inquest is to be held. Ibid. 13. When one begins the erection of a mill and completes it, after the application of another to the county court for the writ ad quod damnum, and for the purpose of defeating the right acquired by the application, he is entitled to no compensation if his mill be overflowed, and to no redress against the party who was proceeding lawfully to obtain a confirmation and establishment of his mill. Ibid. 14. A plea in abatement cannot be sustained to a writ of ad quod damnum, sued out under the statute 1812. It is wholly an exparte proceeding until the return of the inquisition, when any one interested in the subject matter may appear with or without process served on him, and contest the claim of the applicant. Ibid. 15. When defects appear in the writ or inquisition, they may be reached by a motion to quash the same, and if so disposed of, other process can then be awarded, and on its return the cause proceed to final judgment, from which an appeal can be taken by any one previously a party before the court. Ibid. 16. It seems that the legislative provisions on the subject of erecting mills, do not affect the common law right of the citizen, and any person may erect a mill on a stream of water running through his own land without applying to the county court. The right is exercised however at the peril of the proprietor, and the erection must not affect injuriously the right of others. Rosser v. Randolph, 7 P.239. See Nuisance. MORTGAGOR AND MORTGAGEE 1. In controversies between mortgagor and mortgagee, courts of law have authority to investigate the facts, whether or not the condition has been complied with, so as to give the mortgagor the benefit of it. M'Gowan et al. v. Young, 2 S. & P. 160. 2. In trover by mortgagee, the measure of damages is the amount actually due on the mortgage debt, and this, whether against mortgagor or stranger. Ibid. 3. The interest of a mortgagor may be levied on and sold under an execution at law. McGregor & Darling v. Hall, 3 S. & P. 397. 4. A decree in chancery, that defendant's equity of redemption be forever barred, will be considered as a virtual decree of foreclosure. Hunt V. Lewis & Wyser, 4 S. & P. 138. 5. Bill for foreclosure-chancery can only act in rem, and decree a sale or foreclosure of the mortgaged premises, and any balance remaining on the debt, to secure which the mortgage is executed, may be recovered at law, provided however there be an express covenant in the mortgage deed for the payment of the debt, or a separate bond or note, or other evidence of an express promise to pay the debt. Ibid. 6. Though in cases of foreclosure it is usual to decree a sale, yet with the mortgagor's consent, the chancellor may decree the property absolutely to the mortgagee. Ibid. 7. Bill of chancery charging an absolute bill of sale of slaves to have been intended as a mortgage, and there was a discrepancy in the testimony as to whether it was intended as a mortgage-held under the circumstances, that proof of the fact that the property was worth double the sum for which it was conveyed, should be regarded as evidence that the parties intended it as a security, and that the delivery of the slaves to the vendee, was not under the facts entitled to any consideration. Hudson v. Isbel, 5 S. & P. 67. 8. Although an equity of redemption is only available in chancery, yet in the case of a mortgage chattel, when the debt has been paid, the legal title is perfect in the mortgagor, and may be asserted at law, although the mortgagee should have in his possession a bill of sale for the property. Harrison & Harrison v. Hicks, 1 P. 423. 9. In the case of mortgage, as in other deeds, a party is not entitled to an unlimited time for the prosecution of his rights, after his knowledge of the existence of them and of the fraud, but in such case after an unreasonable delay, the law will presume a payment or discharge of the equity. Hatfield v. Montgomery, et al. 2 P. 58. 10. In determining between an absolute sale and mortgage, equity looks to all the circumstances for the intention of the parties; and where it was evident that the sale was only intended as a pledge, will allow the mortgagor to redeem. May & May, ex'rs. v. Eastin, 2 P. 414. 11. Detinue lies by a mortagee of personal property, mortgaged after the time of redemption has expired. Hopkins v. Thompson, 2 P. 433. 12. The question in such action whether the conveyance was intended as a mortgage or a sale, is one of fact, to be determined by the jury. Ibid. 13. Bill filed to foreclose mortgage of real estate against several contending parties, whose rights are doubtful, will be dismissed when it appears that the sum due was less than $100, and that there was other property from which, with due diligence, the money might have been made, and where one of the defendants had died pendente lite, and no steps taken to make his representatives parties. Rogers v: Weakley et al. 2 P. 516. 14. Chancery has no power to decree to mortgagees the proceeds of a policy of insurance effected by the mortgagor, no covenant existing in the deed as to the insurance. Vandergraaf et al. v. Medlock, 3 P. 389. 15. Decree in chancery will not be reversed because the heirs of a mortgagor are not made parties, it not appearing from the record that they are Wilkins & Hall v. Wilkins, 4 P. 245. 16. Decree cannot be rendered on a bill of foreclosure, ordering a sale without production of the mortgage, and proof of its execution. Ibid. 17. The personal representative of a mortgagor is an essential party in a suit to foreclose, but if he appears (without formal order) and asks and obtains time to answer, he is estopped in error from alledging the absence of proceedings to make him a party. Ibid. material. 18. When bond for titles had been assigned to securities for the purchase money as an indemnity, it created an equitable mortgage in favor of assignees, which might be foreclosed. Hays et al. v. Hall, 4 P. 374, 19. A mortgagee of slaves failed to foreclose his mortgage thirteen years, and in the mean time, the mortgagor having died, and his estate being reported insolvent, the lien was reported to be lost. Gayle et al. v. Singleton, 1 S. 566. 20. A bill of sale of personal property, with condition of defeazance or mortgage, founded on a valuable consideration and bona fide, is not fraudulent per se under our statute of frauds, as to creditors not having actual notice of its existence, where the possession remains with the grantor for more than twelve months from its date. Killough v. Steele, 1 S. & P. 262. 21. The act of 1828, requiring the recording within thirty days of all deeds and conveyances of personal property, embraces within its spirit and intention, mortgages of personal property. McGregor & Darling v. Hall, 3 S. P, 397. 22. Where a mortgage of personal property, regularly acknowledged, was left in the proper office, with a bona fide intention to be recorded, five days before the expiration of the thirty days, but which, by the act of the clerk, was not recorded until two days after the thirty days had expired-held to be a compliance substantially with the statute. Ibid. 23. In detinue by the mortgagor of a slave redeemable by the terms of the deed at a certain day, the mortgagor may show by parol proof a verbal agreement to extend the period of redemption, and an offer to discharge the mortgage in pursuance of such extension. Deshazo v. Lewis, 5 S. & P. 91. 24. A claimant of property levied on under execution, cannot in a proceeding to try the right thereto, interpose a mortgage of the property levied on, executed to himself from the defendant in execution. Purnell et al. v. Hogan, 5 S. & P. 192. 25. A having purchased real estate from B, executed notes for the purchase money, and a mortgage to secure the payment which was acknowledged before one justice of the peace, and recorded in the office of the clerk of the county court. Afterwards, before the payment of the purchase money, A being in possession, made a bona fide sale of the premises to C, upon valuable consideration, and placed C in possession, receiving part of the purchase money, and executing unconditional title deeds, without notice to C of the lien of B; C, subsequently being informed of B's lien, agreed with A to withhold the payment of the instalments due by C, until the sequel of B's claim, who filed a bill praying a foreclosure of his mortgage, |