to C for a certain sum, with notice of the first mortgage, and then the first mortgagee, having notice of the second mortgage, lends a further sum, etc. The question was, upon what terms the second mortgagee shall redeem the first mortgage.

"Cowper, lord chancellor, held 'that the second mortgagee shall not redeem the first mortgage without paying all that is due, as well the money lent after as that lent before the second mortgage was made; for it was the folly of the second mortgagee, with notice, to take such a security."

A contrary principle seems to have been decided by a majority of the supreme court of Ohio, in Spader v. Lawler, 17 Ohio, 371 [49 Am. Dec. 461]. We think there is great force in the opinion delivered by the dissenting judge in that case. The ruling of the court, however, was based somewhat upon the effect of the statute of that state relating to mortgages, and is not strictly applicable here.

With the exception of Spader v. Lawler, supra, we have seen no case overruling the decision in Gordon v. Graham, supra. It is cited as authority by Powell, in his learned work on mortgages, vol. 2, p. 533; and by Coote, in his law of Mortgages, 69 Law Lib. 487. Mr. Coventry, in his notes to Powell, vol. 2, pp. 533, 534, suggests some doubts as to the soundness of the principle of Gordon v. Graham, supra, but concludes his remarks by saying "that he, individually, places but slender dependence on the force of their application." See Gibson v. Ingo, 6 Hare, 112; S. C., 31 Eng. Ch. 112.

In the case of Brinkerhoff v. Marvin, 5 Johns. Ch. 326, Chancellor Kent, after citing Gordon v. Graham, supra, and Shirras v. Caig, 7 Cranch, 34, says: "Again, in Livingston v. McInlay, 16 Johns. 165, the supreme court [of New York] observed that if it was a part of the original agreement, a judgment may be entered as a security for future advances, beyond the amount then actually due, in like manner as a mortgage may be held as a security for future advances. The limitation to this doctrine, I should think, would be, that when a subsequent judgment or mortgage intervened, further advances after that period could not be recovered."

But the same learned chancellor, in his Commentaries, says: "So a mortgage or judgment may be taken and held as a security for future advances and responsibilities, to the extent of it, when this is a constituent part of the original agreement, and the future advances will be covered by the lien, in preference to the claim under a junior intervening incumbrance, with notice of the agreement:" 4 Kent's Com. 175.

Upon this question there is some conflict of authority, but after an examination of the cases cited at the bar and some others, we are of opinion that the weight of authority sustains the principle established in Gordon v. Graham, supra.

The subject of mortgages securing future advances has been elaborately considered in many cases, of which a number are clearly reviewed in Truscott v. King, 6 N. Y. 160, 161. An examination of that case will show that at common law a mortgage bona fide made may be for future advances, as well as for present liabilities. Our act of 1825 modifies the common law only in the particular which we have mentioned.

If the junior creditor may, "by inspection of the record and by common prudence, ascertain the extent of the incumbrance," the first incumbrance must prevail.

It results, from what has been said, that the deed of trust of the fifteenth of February, 1856, is a valid and binding instrument, and that the mortgagees therein named, Thomas Wilson and Thomas Wilson & Co., are entitled to have the land and premises and property therein described sold by the trustees named in said deed; and the proceeds of such sale applied in accordance with the provisions of the deed; and that the claims which may be due from William Mason & Son, for and on ac count of the notes loaned to them under said deed, are entitled to be paid out of the proceeds of such sale, in preference to the claims due the complainants. A decree will be passed reversing the order of the circuit court granting the injunction, and the order continuing the injunction, and the cause will be remanded.

Orders reversed, and cause remanded.

MORAL OBLIGATION TO PAY DEBT DISCHARGED BY BANKRUPT LAWS RE MAINS: Melville v. Kirkpatrick, 64 Am. Dec. 125.

CONVEYANCE OF PROPERTY TO PAY DEBT BARRED BY STATUTE of limitations, or discharged in bankruptcy, is not fraudulent as to other creditors of the person making such conveyance: First Nat. Bank v. Bertsch, 52 Wis. 453, citing the principal case.

MORTGAGES TO SECURE FUTURE ADVANCES, VALIDITY OF: See Curle's Heirs v. Eddy, 66 Am. Dec. 699, and note. The principal case was cited to the point that such instruments, if bona fide made, were valid, in Brooks v. Lester, 36 Md. 69; Ahern v. White, 39 Id. 421. This subject is discussed at length in the note to Divver v. McLaughlin, 20 Am. Dec. 655.

DEED OF TRUST OF PERSONALTY, ALLOWING GRANTOR TO RETAIN POSSES. SION, WHEN FRAUDULENT: Grimsley v. Hooker, 67 Am. Dec. 227.

MORTGAGE GIVEN TO SECURE FUTURE ADVANCES WILL BE POSTPONED as to such advances to a second mortgage recorded before the advances were made: Spader v. Lawler, 49 Am. Dec. 461; see also Ladue v. Detroit etc. B. R. Co., 13 Mich. 380, citing the principal case.

CASES

IN THE

SUPREME JUDICIAL COURT

OF

MASSACHUSETTS.

PERKINS v. AUGUSTA INSURANCE AND BANKING CO.

[10 GRAY, 312.]

DEVIATION-MARINE INSURANCE.-A vessel was insured upon a voyage, which was described in the policy as "from New York to Gibraltar, and at and from thence to Tarragona, with liberty of using one port be. tween Tarragona and Gibraltar, and at and thence to New York." Four months later permission to the insured was indorsed upon the policy by the insurer "to stop at one other port between Tarragona and Gibraltar." Held, that, considering the manner of expression used in giving the permission, and the time it was given, the permission was to be availed of on the homeward voyage; that the assured was privileged to stop at one port between Tarragona and Gibraltar, but that he has no right to stop at Gibraltar.

DEVIATION.-An accident to the captain's wife will justify the stopping of the vessel at a port other than those permitted by the policy, if such stop is for the purpose of procuring necessary medical attendance. The jury are to be judges of the necessity.

TO EXCUSE DEVIATION UPON GROUND THAT SAME WAS NECESSARY IN ORDER TO SUCCOR DISTRESS, it must, without doubt, be shown that there was a real necessity for the departure of the vessel from her proper course. The exigency which demands relief must be equal in importance to the intervention which is required in its behalf. Whether it exists, and what it is, must always be a question of fact.

TAKING CARGO ON BOARD, BY VESSEL WHILE SHE IS LYING IN PORT, where there was no previous agreement or stipulation in the policy insuring the vessel that she should go in or remain for that purpose, where she was driven into such port in order to procure medical attendance necessary for the captain's wife, does not constitute a deviation, unless this operation caused additional delay, or otherwise enhanced or varied the risk. Of these questions the jury must judge upon the evidence.

NOTICE OF ABANDONMENT OF VESSEL, WHICH SAYS THAT SHE WAS "FOUND IRREPARABLE ON SURVEY," is sufficient if she was injured so that the cost of repairs, after deducting one third new for old, would exceed half her value. The word “irreparable” should not be construed to mean that the vessel was absolutely incapable of receiving repairs; but that the vessel had sustained damage by a peril insured against, to an amount sufficient to absolve the insured from the necessity and duty of making repairs upon her, and to justify a claim for total loss. CERTIFICATE OF MARINE INSPECTOR AS TO CONDITION AND SEAWORTHINESS OF VESSEL, in connection with his oath that, although he has no independent and distinct recollection of the facts therein stated, so far as he remembers, the statements therein contained were true at the date thereof, is competent evidence of the facts therein stated. It is in its nature a semi-official document, and although not made in pursuance of any positive enactment or rule of law, ranks with entries made by bank clerks, messengers, and other similar agents.

EXPERT IT REQUIRES NO SPECIAL SKILL OR EXPERIENCE TO ANSWER whether the master of a vessel would "probably know that his foremast was sprung, his try-sail split, and his standing rigging in such condition as to need replacing," and a question to that effect to an expert is consequently inadmissible.

ACTION upon a policy of insurance upon a vessel on a voyage "at and from New York to Gibraltar, and at and from thence to Tarragona, with liberty of using one port [European] between Tarragona and Gibraltar, and at and thence to New York." The policy was dated April 9, 1851. On the eighteenth of August, 1851, the following was indorsed upon the policy:" "Permission is given to stop at one other port between Tarragona and Gibraltar, paying one fourth additional premium if liberty is used." The defense claim deviation and unseaworthiness. The vessel left Tarragona on her homeward voyage July 22, 1851, with a part of her cargo on board, and on July 28th she put into Almeria and took on a quantity of cargo; she remained there until August 11th, when she departed, and on August 16th she was abreast of Gibraltar; while here the captain's wife met with a severe accident, and under the circumstances the captain felt himself called upon to stop at Gibraltar for medical attendance for her. He accordingly cast anchor and remained there until August 22d, and while there some new cargo was taken on. On her return home the vessel met with a disaster, and was abandoned to the underwriters. The court instructed the jury to find for defendants, with the reservation that their verdict was to be set aside if this court should hold that the facts justified the deviation. The following opinion was given granting a new trial.

Hillard, for the plaintiff.

Choate and Bell, for the defendants.

By Court, MERRICK, J. The brig having stopped on her pas sage back from Tarragona to the United States, first at Almeria, and afterwards at Gibraltar, the defendants insist that there was a deviation, in each of these instances, by which the underwriters were discharged from all responsibility on account of subsequent losses. This is denied on the other hand by the plaintiff, who contends that the privilege of entering and using each of those ports on the homeward voyage was secured to him, first by a clause relating to that subject contained in the policy, and again by the terms of the memorandum indorsed upon it on the eighteenth of August.

But neither of these conflicting propositions is fully warranted as a consequence of any express stipulation or agreement between the parties. The insurance of the brig by the defendants was upon a voyage, as it is described in the policy, "from New York to Gibraltar, and at and from thence to Tarragona, with liberty of using one port between Tarragona and Gibraltar, and at and thence to New York." But by a later arrangement between the parties, the further permission was given to the insured "to stop at one other port between Tarragona and Gibraltar." Considering the manner in which that permission is expressed, and the time when it was given, it was obviously the concession of a privilege to be availed of on the homeward voyage. This is indicated by the order in which the two places constituting the external limits of the space within which it was to be enjoyed are mentioned, and is a reasonable implication from that circumstance. And as Tarragona, which is the extreme point and termination of the outward voyage, is first named, and is therefore to be passed before this right can be exercised, it is a necessary consequence that it must be exercised on the passage of the brig to its homeward port; and that this was the intention of the parties is apparent from a consideration of the time when their agreement was made. The memorandum was indorsed on the policy more than four months after its date, when they could have entertained no reasonable doubt that the whole outward voyage had been accomplished, and that the brig was either then lying at Tarragona, or had already departed thence on her passage back to New York. It is to this part of the voyage, therefore, that the permission in the memorandum indorsed on the policy is, according to the inten