tion about which there may be some doubt, as for instance, if she is a setting hen, and makes fight, not merely amorous resistance." "Upon this case of the cock and the hen, can any one seriously insist that a jury has no right to call to their assistance their own experience and observation of the nature of animals, and of male and female instincts?" This knowledge of the nature of man, derived from experience and observation, the judge grandly observes, "is the corner stone on which the institution of trial by jury rests." Then he winds up with this unanswerable syllogism: "The prisoner had some intent when he pursued the woman. There is no evidence tending to show that his intent was to kill or rob her; so the intent must have been to have sexual intercourse." (How if it had been to inquire his way, or ask for something to eat?) So the jury, "considering that he was a negro," and the woman's flight, and the prisoner's retreat, and the sexual instinct, "and the repugnance of a white woman to the embraces of a negro," had some evidence to find that the intent was to commit a rape. And so on the fowl presumption raised by the court, the unfortunate Othello suffered, without even finding out whether Desdemona, like Barkis, was "willin'." We must say we think Lynch law is about as good as this. But, of course, as the sufferer was nothing but a "nigger," the case is awfully funny. Another case of a rather entertaining character is State v. Ward, 43 Conn. 489. A person in the night season entered a dwelling-house without breaking, for the purpose of stealing, but broke out in making his escape. Held, burglary at common law.

In Vermont, we notice, with interest, the case of Ferriter v. Tyler, 48 Vt. 444. A school committee, authorized by statute to adopt all requisite regulations, excluded children from the school for absence contrary to the rules. This was held valid, although the absence was pursuant to the command of their Roman Catholic parents and their priest, and for the purposes of keeping a religious holyday of the church.

In Arkansas, we note the case of Wilson v. Tebbetts, 29 Ark. 579. One of several sureties for a debt notified the creditor, on the maturity of the debt, to sue the principal debtor within thirty days, which he failed to do, whereby, by statute, that surety was discharged. Held, that the sureties who had given no notice remained liable.

In Missouri, the case of Doss v. Missouri, Kansas and Texas Railroad Co., 59 Mo. 27, is noticeable. Plaintiff went on board defendant's railroad train, not as a passenger, but to find seats for some female friends in his charge. The train started before he could get off, and in getting off he was injured. The defendant was held liable. In Snidell v. Rokes, 60 Mo. 249, a promissory note, payable on condition that the payee abstain for a certain time from

the use of intoxicating liquors, was held valid. This reminds us of the case, in Illinois, of Phillips v. Myers, upon a promissory note running as follows: "For value received, one day after I, at any time, become intoxicated or drunk, or mistreat or abuse Minnie Myers, I promise to pay to S. M. Phillips the sum of six hundred dollars for the use of Minnie Myers, with ten per cent interest from maturity till paid." Minnie was the maker's wife, and had sued him for divorce, and the note was given in consideration of the discontinuance of the suit, and her returning to live with him. As might have been prophesied, the note "matured," and it was held valid. We believe these two cases are a fair offset to each other, in pronouncing upon the comparative force of the passions of avarice and gluttony. We shall take up this volume again.

A NOTABLE WILL CASE.

LONDON, November 15, 1877.

ON Monday Vice-Chancellor Malins had a case before

him which, if it ever reaches a decision on the merits, will take rank as one of the most important illustrations of the doctrine of interpretation of wills.

Knole was the seat of the Earls and Dukes of Dorset from the time of the first Earl, Queen Elizabeth's cousin and Lord High Treasurer, down to the time of the Duke who died between thirty and forty years ago. The Sackville family then came to be represented by two sisters, daughters of the third Duke - Lady De La Warr and Lady Amherst; and Knole fell to the lot of the latter, who was childless, while Lady De La Warr had several sons. In order to keep the name and fame of Sackville associated with Knole, apart from all other connections, the Queen was induced to revive the Barony of Buckhurst, which was the first Peerage in the Sackville family, and to create Lady De La Warr Baroness Buckhurst, with remainder to her second son, and a proviso in the patent that if the second son succeeded to the De La Warr title, the Barony of

Buckhurst should pass to the next son, and so on, so

that the Barony of Buckhurst should constitute a distinct family: Lady Amherst engaging, on her part, to settle Knole on similar limitations, so that the estate should pass as the Barony was intended to pass. This was in 1864, and Lady Amherst, while the deeds of settlement of the estates on the Buckhurst title were being prepared, made a codicil to her will directing her trustees, in case she should die before the deeds were finished, to "settle the estates in a course of entail to correspond as near as might be with the limitation of the Barony of Buckhurst." The lady died before she could execute a settlement of the estates. In March, 1866, the Court of Chancery was applied to touching the form of a settlement to be drawn up in accordance with the codicil of the deceased lady's will. The third son of Lady De La Warr resisted the settlement, and the case went to the House of Lords, which, in 1870, ordered a settlement to be made with a shifting clause, in exact accordance with the words of the clause in the patent of Peerage; but the Lords distinctly declined to express any opinion as to the validity of the clause in the patent. Lady Amherst had ordered the property to be settled in a course of entail to corre

spond with the limitations of the Buckhurst Barony, and the Lords showed how this was to be done, but they went no further.

Lady De La Warr died, and her second son succeeded to the Barony and the property; but on his eldest brother dying childless, he became Lord De La Warr, and his next younger brother claimed the estates and Barony of Buckhurst. He obtained possession of Knole, but when the validity of the shifting clause in the patent came before the Lords, sitting as a committee of privileges, they decided that the Crown had no power to create a Peerage shifting about in the way proposed, and they accordingly determined that though Lord Buckhurst had become Lord De La Warr, he remained Lord Buckhurst also. Part of the design of the sisters was thus frustrated, but Knole still remained with the next brother, and the Crown has been advised to create him Lord Sackville.

Lord De La Warr dissented from this arrangement, and it was insisted, on his behalf, before the ViceChancellor, that since the Barony of Buckhurst did not pass to his brother, neither did the Knole estates: that the failure of the shifting clause in the patent makes the shifting clause in the settlement to fail also. It was the intention of Lady Amherst that the property and the Barony should go together, and they must remain together. Vice-Chancellor Malins so far assented to this argument as to say, that "Lady Amherst did intend these estates to go with the Barony of Buckhurst, and that Knole park and the rest of the property ought to belong to Lord Buckhurst, though he is now Lord De La Warr;" but the decision of the Lords in 1870 is too strong for him, and he has rejected the claim, leaving the claimant to prosecute it elsewhere if he is so disposed, and, thus encouraged, he will probably pursue it until it again reaches the House of Lords.

The arguments against Lord De La Warr's contention and the admission of Sir Richard Malins are very well set forth in the following extract from the Times: "It is no doubt true that Lady Amherst did intend the Knole estates to go with the Barony of Buckhurst; but this is only part of the truth. Another portion was supplied by Lord Cairns in 1870: - 'The testatrix designed to endow the Buckhurst Peerage, but she designed to endow it as a separate Peerage.' The committee of privileges have decided that it cannot be kept apart as a separate peerage, and the design to endow it in this character cannot be stretched into a design to endow it as a peerage held in union with an older earldom. The contention of Lord De La Warr is, from this point of view, inadmissible. It does not necessarily follow that the contention of Lord Sackville is sound. Lady Amherst meant the Buckhurst Peerage and Knole to go together in a particular course. The law will not allow the peerage to go in that course, and it has gone elsewhere; but this diversion of the peerage out of the course contemplated by the testatrix will not drag her property into another course along with it. The intention failing in respect of the peerage may remain good in respect of the property. The law imposes no obstacle to the fulfillment of the intention in this direction, if apt words have been used to express it. If apt words were not employed, the result would be an intestacy on the part of Lady Amherst in this respect, so that Knole would pass to her real representatives. The language of Lord Cairns, in 1870, suggests a doubt whether, in the events that have happened, this would not be, in his opinion, the conclusion of the whole matter. should rather be disposed to think that the language of Lady Amherst's codicil was sufficiently precise, and that her indication of the line of devolution of her estates did not stand or fall with the failure of the Barony to pass in the same course of descent; but this is a point which may be left to the argument of many learned counsel and the judgment of many learned judges."

We

THE

THE LAW OF DESCENT.

'HE Kansas law of descent passes the entire estate, real and personal, of a deceased husband or father to the wife and children, one-half to her and the other half to them. If there be no children, then the entire estate goes to the wife. The statute of wills prevents the husband from willing away from his wife, without her written consent, any portion of his estate to which she would be entitled if he died intestate. So that a man having children cannot, by will, deprive his wife of more than half his estate; having no children, can deprive her of none of it. Barry v. Barry, 15 Kans. 587.

This last provision is an outrage, was probably an oversight on the part of the legislature, and will doubtless be corrected by the present commission of revision. But is not the first part wise, that a husband shall not be at liberty to will away from his wife more than half his property? And if the whole matter of wills is not a mistake, would it not be wise to prevent either wife or child being deprived, by will, of all of the husband or

father's estate? If, for instance, one-half his estate was beyond his power of disposal by will, and passed in certain fixed proportions to his heirs, would not the disposition of property be ordinarily as wise and just as now, and would not a vast amount of that disgusting and disgraceful litigation, of which the present Vanderbilt will contest bids fair to become a chief example, be avoided? If such had been the law in New York two years ago, would the public now be threatened with that insight into the private life of the Vanderbilt family, which has been paraded in all the papers from Maine to California? Again, would not such a aw tend to prevent that transmission of estates which has been always regarded as against the genius of our institutions? The estate built up in one generation is scattered in the next; such has been the rule hitherto. But there is growing a desire to perpetuate unbroken from generation to generation a family fortune. The Astor and Vanderbilt estates are instances. Would not the public weal be promoted and the best interests of society subserved by a division of such vast inheritance among all the children rather than by a transmission in bulk to one? B.

INNKEEPER-LIABILITY FOR LOSS OF PROPERTY OF GUEST.

ENGLISH COURT OF APPEAL.

SPICE V. BACON.

Plaintiff, a guest at defendant's inn, retired without locking the door of his room. During the night his watch, money and other property, which had been left upon a chest of drawers near the door, were stolen.

By section 1 of 26 & 27 Vict., it is provided, that no innkeeper shall be liable to make good any loss of property brought to his inn, except when such property shall have been "stolen, lost, or injured through the willful act, neglect, or default of such innkeeper, or any servant in his employ."

Section 3 of said act requires the innkeeper to exhibit a copy of section 1 in a conspicuous part of the entrance to his inn. Defendant caused a notice, purporting to be a copy of section 1, to be placed in the entrance to his inn, but the word "act was omitted.

Held, (1) that the innkeeper was not protected by the statute; (2) that the question of negligence was properly left to the jury.

ACTION against an innkeeper to recover the value of

property stolen from the plaintiff while staying at the inn. The facts appear sufficiently from the head-note to this report, and the judgments of the Court of Appeal, post.

At the trial before Kelly, C. B., the learned judge left two questions to the jury:

1. Was the plaintiff guilty of negligence, or any breach of duty, in not locking his door, which caused or materially conduced to the loss of his property? Answer: Yes.

2. Did the loss arise from the willful default of the defendant or his manager, in not searching the porter or the servants, the porter having proved that nobody else was in the house except two gentlemen above suspicion? Answer: No.

The learned judge afterward ruled that there was no evidence of negligence on the plaintiff's part, and entered judgment for him.

Defendant now moved in the Court of Appeal to have the judgment entered for him.

Grantham, Q. C., and J. H. Johnstone (R. E. Webster with them), for defendant. There are two questions: (1) Was the notice sufficient? (2) Was there any evidence of plaintiff's negligence to go to the jury? (1) The notice was a sufficient copy of the section. The

omission of the word "act" is a mere verbal one, which can deceive nobody. If this verdict stands, it will be a decision that every punctuation must be put in. "Willful" will apply as well to “neglect or default" as to "act." (2) The Lord Chief Baron should have left the whole question to the jury. They would have found still more strongly that the plaintiff was negligent if the fact that there were drawers in the room in which he might have locked up his property, had been before them. It would, therefore, be useless to send the case again before a jury. Under the Judicature Acts a new trial should not be granted unless the court are satisfied that a substantial injustice has been done by what is complained of. The prima facie liability of the innkeeper may be rebutted by proving negligence on the part of the guest. In Cashill v. Wright, 6 E. & B. 891, Erle, J., at p. 900, lays down the law on this subject: "We think that the rule of law resulting from all the authorities is, that in a case like the present, the goods remain in the charge of the innkeeper and the protection of the inn, so as to make the innkeeper liable as for breach of duty, unless the negligence of the guest occasions the loss in such a way as that the loss would not have happened if the guest had used the ordinary care that a prudent man may be reasonably expected to have taken under the circumstances." See, also, Armistead v. Wilde, 17 Q. B. 261; Jones v. Jackson, 29 L. T. Rep. (N. S.) 399; Oppenheim v. White Lion Hotel, 25 id. 93: L. R., 6 C. P. 515. Here there was evidence that plaintiff did not take the reasonable care with respect to his property which a prudent man would have done.

Herschell, Q. C., and Gainsford Bruce, for plaintiff. (1) The notice is not sufficient to protect the defendant. Not only is the word "act" left out, but the words "or his servant authorized by him for that purpose" are added. Where an act relieves a person from his common-law liability, its provisions must be strictly complied with. Vaux v. Vollans, 4 B. & A. 525. Besides, the sense of the section is entirely altered by the word "act" being left out. In Squire v. Wheeler, 16 L. T. Rep. (N. S.) 93, Byles, J., held that "willful" in section 1 of 26 & 27 Vict., c. 41, applied only to "act," and not to "neglect or default." The notice must cover the rights of the parties. Here the landlord holds himself out as being liable only for the "willful neglect or default" of himself or his servants, so that if one of his servants had clearly stolen the property, the landlord would not have been liable on the notice. (2) There was no evidence of contributory negligence on the plaintiff's part, except that the bedroom door was not locked. A jury could not reasonably find negligence on the facts. It is the known practice and ordinary habit of mankind not to put their things into a drawer, and many people object to locking their bedroom door for fear of being surprised by fire. Plaintiff did not omit to do any thing which ordinary care would suggest.

J. H. Johnstone replied.

Lord Chancellor CAIRNS. We think it would be more satisfactory, before disposing of this case, to read over again the summing up of the Lord Chief Baron. We will deliver judgment on one part of the case tomorrow. We may remove one question, on which we do not entertain any doubt, from the case at once. We think that the notice put up by the defendant was not sufficient to satisfy the statute. I very much regret having come to the conclusion, because there

was no doubt a bona fide intention on the part of the defendant to give a notice which would be an exact compliance with the statute. The omission was merely per in curiam. At the first sight it appeared to me that it might be looked upon as an omission of one or two words not material to the sense of the statute, and I was not prepared to hold that a notice, given in good faith as and intended to be a copy of the statute, if all that could be said against it was that one or two words not material to the sense had been omitted, was not a sufficient copy of the statute to protect the innkeeper. But here the word omitted was "act," and the sentence, which should have read, "When the property shall have been stolen, lost, or injured through the willful act, default, or neglect of the innkeeper, or any servant in his employ," now reads, "through the willful default or neglect of," etc. There is, therefore, no statement in the notice, admitting a continuance of the common-law liability, if the goods are lost, etc., through the willful act of the defendant, and the result is this: if the goods were clearly stolen by a servant in the employment of the innkeeper, the notice, as it now reads, would be a notice that his common-law liability in that case had ceased. It is sufficient to say, if that be so, that the omission entirely alters the operation of the statute, and it is not, therefore, a notice stating the law in the way the first section of the statute requires it to be stated. I feel obliged, therefore, with great reluctance, to hold that the defendant is in the same position as if the statute had never passed for his protection.

COCKBURN, C. J. I quite concur in the judgment of the Lord Chancellor. If this had been a mere clerical error, I should hold that the notice might still suffice to meet the requirements of the act. It would still be a "copy" of the section. But when we find that by the notice, the rights and liabilities of the parties, generally, under the statute are not stated, and therefore, in effect, a substantial part of the statute is omitted, I cannot think that the notice in this case is sufficient.

BRAMWELL, J. A. I am of the same opinion, and I have nothing to add.

Lord Chancellor CAIRNS. We disposed yesterday of the question on the construction of the statute, but there is a further question as to the conduct of the plaintiff, and whether he was guilty of such negligence as would disentitle him to recover. The law is free from all doubt. The law from early times has been that an innkeeper was bound, if he had room, to receive guests, and, as a general rule, to keep securely the property of his guests. But there is this exception: the general rule does not entitle the guest to divest himself of the duty to take reasonable care, so as to invest the innkeeper with the character of an absolute and unqualified insurer. An instance of this is given in Calye's case, 1 Smith's L. C., 7th ed. There it is said that if a guest goes to an inn with a servant or companion, through whose dishonesty the guest's property is lost, it should be the loss of the guest; for it was his fault for keeping such company or having such a servant. The cases subsequently treat this as an illustration, and the exception is expanded by using words which show that the innkeeper is not liable, if the negligence of the guest has caused or contributed to the loss. Cashill v. Wright, 6 E. & B. 891. The circumstances, therefore, are to be considered, the value of the property, the means of securing it, and any other circumstances. Whether the

guest has or has not exercised reasonable care is a question for the jury, and no general rule can be laid down; still less can there be any general rule of law, for it is a question of fact. The first question here is, was there evidence to go to the jury that there was not reasonable care on the part of the plaintiff? When I say was there evidence, I mean was there evidence from which the jury could reasonably conclude that there was not such care. The defendant keeps a large hotel at Brighton, where the plaintiff was a guest; the property in question was of small bulk, so that it would be easily abstracted, and of considerable value, the value being agreed at 114l. 88. 6d. I do not forget that in these cases the question is one of comparison, and I find the legislature, in the Innkeepers' Act, 26 & 27 Vict., c. 41, taking a much smaller sum, 301., as the limit of an innkeeper's ordinary liability. That being the character of the property, the plaintiff might have handed it over to the innkeeper to take care of, but, as to the watch especially, that might not be a convenient course; there was a chest of drawers near the door with a lock and key to them, and a dressing table with a drawer in it which could be locked. The property was placed on the drawers and on the table, except the money, which was put into the pocket of some article of dress. The property was taken away in the night. The plaintiff might have locked the door of his room, but some people have an objection to doing that; or he might have locked the property up in the drawers. He took none of these courses, but left the property without taking steps for its security, and the result was that it was stolen. On the facts, it is not necessary to say that the jury ought to have concluded that the plaintiff did not take reasonable care, if there was sufficient evidence to go to the jury, on which they could reasonably find against the plaintiff. The jury, on the question left to them, have found for the defendant, and having so found on the question, if the question was a proper one, and accompanied by proper directions, there is an end of the case, and there must be judgment for the defendant. That brings me to the main point, as to the form of the question left to the jury and the direction. The first question left to the jury was as follows: "Was the plaintiff guilty of negligence or of any breach of duty in not locking his door, which caused, or materially contributed, to the loss of his property?" If this question stood alone, it would be open to criticism, but it was accompanied and preceded by a summingup and explanation, and it would be unfair to take it alone. Besides this, counsel did not object to the question. In the summing-up, there is a clear statement that there is no rule of law that a guest is bound to lock his door. In the summing-up, and in the final question, there is reference to one particular act, that of locking the door, and the criticism to which the direction is open is, that, instead of leaving to the jury the question whether the plaintiff took reasonable care, the Chief Baron put it to the jury, whether they thought the plaintiff ought to have locked his door; I should be sorry to say any single word implying that there is any rule of law as to this. The fault of the direction, if any, is that it is too narrow, but the jury found for the defendant on this point, and in the face of a summing-up which, on the whole, was not favorable to the defendant. The conclusion is, that if the direction had been broader, the jury would have found for the defendant, and if it is open for criticism, it would be to criticism from the defendant. If it had

been more correctly worded, it would have been more favorable to the defendant. It meant this: "You have all the circumstances before you, and you can see what steps the plaintiff could have taken to secure his property, and you must consider, if he was not prepared to take any of these steps, whether he ought to have locked his door." In substance, the jury were asked to consider all the circumstances. On a question of misdirection, by Order XXXIX, r. 3, we must consider whether some substantial wrong or miscarriage has been occasioned by the direction. Assuming that the question left to the jury was too narrow, I cannot think that any substantial wrong was occasioned by it, for if the direction had been broader, there would still have been a verdict for the defendant, so we ought not to send the case back for a new trial. I, therefore, think that the finding on this question amounts to a verdict for the defendant, and there should be judgment for the defendant.

COCKBURN, C. J. I entirely concur that the law is as it has been laid down by the Lord Chancellor, and I agree that the judgment should be for the defendant, and there should be no new trial. I am anxious to guard against expressing any opinion that the verdict of the jury was right, but I think it is a question for the jury whether reasonable care was exercised by the plaintiff. It is a question of fact on all the circumstances, and if I could see my way to the conclusion that the jury were not invited to consider all the circumstances, I should be disposed to direct a new trial. Taking the passages in the summing-up, which have been read by the Lord Chancellor, it appears to me that there must have been present to the minds of the jury, not the abstract question whether it is a prudent course for a guest at a hotel not to lock his door, but whether the plaintiff acted prudently under the circumstances, and one circumstance to be considered, would be the value of the property with reference to its bulk. The question was one for the jury, and there was evidence to go to them, and, therefore, I think there is no reason for ordering a new trial.

BRAMWELL, L.J. I am entirely of the same opinion. I have some misgiving as to whether the form of the Chief Baron's direction is open to any objection at all. The defendant says: "I find no fault with the plaintiff for not handing over the property to be taken care of, nor for not locking it up in the drawers, but I find fault with him, because, as things were so, he did not lock his door."

Judgment reversed and entered for the defendant. MORTGAGE ON PROPERTY NOT IN POSSESSION OF MORTGAGOR.

the estate of the late William B. Lawton. The title of William B. Lawton accrued to him under two mortgages, executed to him by the defendant, Nicholas C. Briggs, and dated respectively January 1, 1867, and July 2, 1870. The second mortgage purports to convey to Lawton "all and singular the tools, fixtures, stock in trade for the manufacture of carriages, and also all carriages made or in process of manufacture, now in my carriage factory, No. 254 High street, in said city (Providence), together with all my right, title and interest in and to the land and building used for and in connection with said factory. And also all and every article and thing that may be hereafter purchased by me to replace or renew the articles and things hereinbefore conveyed, and also all stock, tools, fixtures and carriages, whether manufactured or in process of manufacture, that may be hereafter purchased by me to be used in or about my business of buying and selling, making and repairing carriages." On the 14th of August, 1875, the defendant, Nicholas C. Briggs, made to the defendant, Edwin Winsor, a general assignment of all the property of which he was the lawful owner, excepting only what and so much as was exempt from attachment by law, in trust for the equal benefit of all his creditors. Under this assigument the said Edwin Winsor took possession of the assigned property, among which was the property for the conversion of which this action is brought. It appeared at the trial, which was had before the court, jury trial being waived, that only a small part of the property which is in controversy was in the possession or ownership of the said Nicholas C. Briggs at the time the second mortgage was made, the larger part of it having been subsequently acquired for the purpose, however, of renewing or replacing the stock and property which the said Nicholas C. Briggs then had. The case, therefore, raises the question whether a mortgage of property to be subsequently acquired conveys to the mortgagee a title to such property when acquired, which is valid at law as against the mortgagor or his voluntary assignee. The question is one which, so far as we know, has never been decided in this State by the Supreme Court sitting in Banc.

We think such a mortgage is ineffectual to transfer the legal title of the property subsequently acquired, unless, when acquired, possession thereof is given to the mortgagee or taken by him under the mortgage. This view is supported by numerous cases in Massachusetts: Jones v. Richardson, 10 Metc. 481; Moody v. Wright, 13 id. 17; Barnard v. Eaton, 2 Cush. 294; Codman v. Freeman, 3 id. 306; Chesley v. Josselyn, 7 Gray, 489; Henshaw et al. v. Bank of Bellows Falls, 10 id. 568; by cases in other States: Otis v. Sill, 8 Barb. S. C. 102; Milliman v. Neher, 20 id. 37; Hunt v. Bullock, 23 Ill. 320; Hamilton v. Rogers, 8 Md. 301; Chynoweth v. Tenney et al., 10 Wis. 397; Farmers' Loan & Trust Co. v. Commercial Bank, 11 id. 207; Single v. Phelps et al., 20 id. 398; Gale v. Burnell, 7Q. B. 850; Lunn v. Thornton, 1 C. B. 379; Robinson et al. v. McDonald et al., 5 M. & S. 228; Congreve v. Evetts, 10 Exch. 298; also in 26 Eng. Law & Eq. 493. The reason on which the cases rest is expressed in the maxim, Nemo dat quod non habet. No person can grant or charge what he has not. The maxim, in its strict sense, is confined to cases at law. There are cases in equity which hold that such a mortgage is effectual to charge the property, when acquired, with an equitable lien, or to create an equitable title in it in favor of the mortgagee against the mortgagor, and even, as