until after the condition is broken, nor until written notice is given to the mortgagor, or action commenced, and such notice or certificate must be recorded. The mortgagor may redeem the estate at any time within three years, by tendering the sum then due, and costs, if there be any; and such tender may be made before or after breach of condition. If the mortgagee has had possession, he must account for the rents and profits, and will be allowed for reasonable repairs, taxes, &c. Such tender, if not accepted, shall not prevent the foreclosure of the right of redemption, unless a suit for redemption be commenced within one year after tender is made.

Power to sell.-A mortgage may contain a power to sell, which destroys the right to redeem in the mortgagor, and all claiming under him, without the aid of any court. Such sale will not however prejudice a mortgage made prior to the sale. The sale is made at public auction, after the premises have been advertised in the public papers or otherwise. The mortgagee, out of the money of the sale, retains his debt, interest, costs and charges, and renders the overplus, if there be any, to the mortgagor.*

MORTGAGED PERSONAL PROPERTY.

(Laws, R. S. c. 74, 90; and 1843.)

Mortgages of personal property must be recorded as well by the clerk of the town where the mortgagor resides, as by the clerk of the town in which he principally transacts his business or follows his trade or calling," if the mortgagor retains possession of the mortgaged property; otherwise the mortgage is invalid.

Foreclosing a mortgage of personal property. - The mortgagee or his assignee must give a written notice of an intention to foreclose a mortgage, to the mortgagor, or person in possession; and cause a copy of such notice to be recorded where the mortgage is recorded, sixty days before the actual forfeiture of the mortgaged property.

Attaching mortgaged personal property. A mort

[* See" Business Man's Assistant" for Forms of Mortgages of Real Estate and Personal Property; Assignment of Mortgage; Partial Release of do.; Entry by Mortgagee; Certificate of Witnesses; Discharge, &c.]

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177

gage not foreclosed has no effect in preventing attachments; but the mortgagee shall deliver to the attaching creditor, or the officer, a statement in writing, containing a just and true account of the debt or demand for which the property is liable to him, making demand of payment, and if the same is not paid or tendered to him within ten days thereafter, the attachment shall be dissolved, and the mortgagee will be entitled to a compensation for any damage, sustained by him, by reason of such attachment.

Mortgagee summoned as a trustee.—When mortgaged property is attached, the mortgagee may be summoned as a trustee to answer respecting the mortgage, and the attaching creditor may require the validity of the mortgage to be tried by a jury. The court may order the attaching creditor to pay the amount ascertained by examination, or a verdict of a jury, to be justly due on the mortgage, and he may be reimbursed out of the avails of the property when sold, or he may hold the property till the mortgagor shall indemnify him

Penalty for demanding and receiving more than is due on a mortgage. If such mortgagee shall demand and receive more than the amount due to him, he shall be liable for the excess, with twelve per cent. interest, to be recovered by the attaching creditor.

GENERAL LIEN.

A LIEN may be defined a right which one person has to detain the property of another on account of labor expended on that property, or for the general balance of an account due from the owner.

As the common law imposes on certain trades, as innkeepers and carriers, the obligation of accepting all employment offered within the limits of their occupation, so, in return for this obligation, it entitles the party to a particular lien on the property as a remuneration for the trouble and expense incurred in the execution of the purpose for which such property was entrusted.

But the general opinion appears to be, that the right of lien is not confined to those trades which are under an obligation to accept employment from all who offer it; but that the remedy by detention extends to every trade exercised for the benefit and advantage of the community.

Attorneys and solicitors have a lien for their costs on the papers of their clients; bankers, upon all securities in the way of trade; brokers, factors, and agents, on the property of their principals in possession, or even in the hands of purchasers; masters of vessels, on their cargoes, for wages, or necessary repairs, during the voyage; carriers have a lien for the carriage price; innkeepers on the goods and property of their guests, for their food and lodging, and on their horses, for their keeping and stabling; insurancebrokers have a lien for the general balance of their account on the policies 7*

L. T.

effected by them for their principals; lastly, millers, packers, wharfingers, dyers, coachmakers, calico-printers, and others, have all a lien on the goods respectively confided to them in the way of business.

But as the right of lien is admitted for the benefit of trade, it is confined in its operations to trade only. Therefore no lien lies for the pasture of cattle, or the keep of a dog; or where there has been a special agreement to pay a certain sum for workmanship, in which case the owner of the goods on which the labor has been bestowed can only be made personally liable.

A right of lien gives no general right to sell goods, except where the detention of goods is creative of expense when the lien is saleable. In case, too, of the lien of cattle, it is admitted that they may be worked as the owner would have worked them; so also a cow must be milked.

Under the following circumstances the right of lien cannot be exercised: 1. If the possession of property has been obtained wrongfully or by misrepresentation. 2. If it has been entrusted solely on the personal credit of the owner of the lien, or delivered by an authorized servant or agent. 3. And lastly, no lien can be acquired over property delivered by a bankrupt, or one in contemplation of insolvency.

It is also material to remark, that if the holder of goods accept a specifie security in lieu, or voluntarily part with the possession of the whole, or part of them, he afterwards loses all right of lien upon them.

By the general maritime law, material men have a three-fold remedy for supplies and materials furnished to a foreign ship: 1st, against the vessel; 2dly, against the owners, 3dly, against the master. The lien of material men must be enforced within a reasonable time after the debt is due, or it will not avail against a purchaser. (2 Story's R. 456.)

The mechanic has a lien upon articles repaired by him, for his labor and materials, and may retain possession until he is paid. (2 N. Y. 628.)

Where a party has undertaken to perform labor in transporting goods, and has performed but part of the service, he cannot hold the goods on the ground of lien for whai he has done. (9 N. H. 42.)

LIEN OF MECHANICS, SHIPWRIGHTS, AND OTHERS.

(Laws, R. S. c. 117; and 1848.)

the

Lien on land for cost of erecting or repairing buildings. A written contract with the owner of land, signed by him or his authorized agent, for erecting or repairing any building or the appurtenances thereof, on same land, may be recorded by the register of deeds for the county where the land lies, and the contractor will thereby obtain a lien on the land described for the amount of the contract, which continues six months after the money or the last instalment thereof is due.

A petition for the sale of the land, may be filed in the office of the clerk of the court of common pleas, at any time after the expiration of sixty days from the time appointed for any payment which may be neglected or refused, and order of notice may be obtained for a hearing at a day appointed, not less than fourteen days after the service of the notice upon the owner of the land, with a copy of the petition. At the time appointed, or at a subsequent time to which the hearing may be adjourned, the petitioner and all others holding

LIEN OF MECHANICS AND OTHERS.

79

similar liens, and having served similar notices, according to an order of court, may proceed to prove their claims, and the court, at the request of either party, may order a trial by jury; and if the lien of any creditor be established, the court may order a sale of the premises, or of any part thereof which may be separated from the rest without injury to the remainder, for the equal benefit of all creditors who shall have established their claims under liens, and also for the benefit of attaching creditors, in the order of their claims, the latter to be paid on the executions recovered in their several actions, unless the fund shall be exhausted by prior liens or attachments.

Persons holding liens for debts due but not payable till after the time of the judgment, are entitled to share with others, a discount or rebate of interest being made for the time to elapse previous to the time of pay

ment.

Lands sold by order of court for payment of liens, may be redeemed within a year.

If a petitioner for the sale of lands subject to lien reside out of the State, his petition must be indorsed, like an original writ, by some sufficient person who is an inhabitant of the State.

If a petition be filed within six months after the amount contracted for on the last instalment thereof becomes due, and payable, a lien continues till the proceedings are closed, otherwise it is dissolved.

A contractor prevented by the other party from completely fulfiling his contract, without his own default, is entitled to a proportionate compensation and the benefit of his lien, for so much as he may have performed.

The petition may be in the following form:

Petition for Sale of the Land.

To the Honorable the Justices of the Court of Common Pleas, next to be holden at - within and for the county of

The petition of A. B., of aforesaid, builder, respectfully represents,

That, by a contract in writing, made and executed by and between him, the said A. B., and C. D., of said merchant,

on the

day of in the year -- and recorded in the Registry of Deeds, Lib. -> fol. -> a counterpart of which is hereto annexed, he, the said A. B., engaged and covenanted to and with the said C. D. to build and erect a dwelling-house and out-houses, of the dimensions in the said contract mentioned, and to furnish timber, stone, brick, and all other materials for the same, upon a certain tract or parcel of land belonging to the said C. D., situate in aforesaid, and which is bounded and described as follows: [here describe the land:] and by the same contract the said C. D. agreed and covenanted to and with him, the said A. B., to pay him, the said A. B. the sum of thousand dollars for the work, labor, and materials, to be expended and applied by him in the erection of the said house and out-houses, in equal instalments of dollars each, payable respectively months, from the day of

then next,

in and if the said house and out-houses should be completed and finished within from that date. And the said A. B. avers that the same were erected, and finished, and ready to be occupied, on the day of last, within the term provided for the erecinstalments

tion thereof, and that the whole of the said were due on that day, but that only two of the same, to wit, the sum of dollars, have been paid by the said C. D., and that the remaining to wit, the sum of dollars, are still due and unpaid. Wherefore he prays, that this court may issue an order for the sale of the land aforesaid, and that the proceeds thereof may be applied to the discharge of his aforesaid demand of dollars, with interest upon each of the said unpaid instalments, from the times when they respectively became due, and the cost of this petition, according to the statute in such case made and provided.

Dated at

In presence of

aforesaid, the first day of June, A. D., 18-. A. B. (L. s.) C. D. (L. s.)

A lien on ships and vessels is allowed for labor performed, or materials used in the construction or repair of, or for provisions and stores, or other articles furnished for or on account of such ships or vessels, within this Commonwealth, and the lien extends to their tackle, apparel and furniture, and takes precedence of all other liens, except mariners' wages.

Such lien will cease in twenty days after their departure from the port where the debt shall be contracted, to another port in this Commonwealth, or immediately after their arrival at a port out of this Commonwealth. Liens on foreign ships or vessels remain as they were before this statute was passed.