68 



MORTAIl MORTGAGE. 



greater care. For different views of the subject, see 

 Annuities, Longevity, Physiology. 



MORTAR is a kind of short cannon, of a large 

 bore, with chambers. Mortars are made of stone, 

 brass, or iron. Their use is to throw hollow shells fill- 

 ed with powder, which, falling on any building, or into 

 the works of a fortification, burst, and their fragments 

 destroy every thing within reach ; also balls of stone, 

 carcasses (q. v.), bags filled with grape shot, &c. 

 They were first used in sieges, for throwing great 

 balls of stone and of red-hot iron, before the inven- 

 tion of shells. On this account, the caliber of a 

 mortar, in Germany, is generally estimated by the 

 weight of a stone of the size of the bomb which it is 

 intended to throw. In Denmark and Russia, on the 

 contrary, the caliber is estimated by the actual 

 weight of an iron ball fitting it; in Britain and 

 France, by its diameter in inches. In the larger 

 states of Europe, ten, sixteen, twenty-five, thirty, 

 fifty, and sixty pound mortars, according to the stone 

 weight measure, are used. In the Prussian army, 

 seven, ten, twenty-five, fifty, seventy-five pound mor- 

 tars are customary. Formerly they were used even of 

 120 pounds' weight; but these are not employed at 

 present, except in particular cases. Their length is 

 generally from two and three-fourths to three and 

 one-fourth times the diameter of the caliber. The in- 

 terior parts of a mortar are the chamber, the bore, 

 the mouth, the vent. The chamber is the place 

 where the charge of powder is lodged. The shape 

 of the chamber varies. It is generally conical, more 

 or less truncated. Land mortars are those used in 

 sieges, and mounted on beds. The beds are made 

 of very solid timber, and placed upon very strong 

 timber frames. The bed is so made as to turn 

 round. Stone mortars serve to throw stones into the 

 enemy's works, when near at hand. Sea mortars 

 are those which are fixed in bomb-vessels, for bom- 

 btirdmg places by sea. They are made much longer, 

 and somewhat heavier than land mortars. The use 

 of mortars is thought to be older than that of cannon, 

 for they were employed in the wars of Italy to throw 

 balls of red-hot iron and stones long before the inven- 

 tion of shells. It is generally believed that the Ger- 

 mans were the inventors, and that they were used at 

 the siege of Naples, in the reign of Charles VIII., in 

 1435. It is more certain that shells were thrown out 

 of mortars at the siege of Wachtendonk, in 1588, by 

 the count of Mansfeld. For further information, see 

 Bomb, and Howitzer. 



MORTAR. See Cement. 



MORTGAGE. A mortgage is a conveyance or 

 transfer of real or personal estate to secure the gran- 

 tee or assignee the payment of some debt, or the 

 performance of some agreement, with a condition 

 or understanding that, in case of the debt being paid, 

 or the agreement, being performed within a certain 

 time, and in the specified manner, the conveyance 

 or assignment shall be void, and the land, or per- 

 sonal property revert to, or rather, still belong to 

 the mortgager. The English, and so the American 

 mortgage of land is mostly borrowed from the 

 civil law (see Kent's Commentaries, vol. iv., part 

 4, lecture 57 ; Brown's Civil Law, vol. i., p. 200), 

 or, at least, many of the rules and incidents of the 

 Roman hypotheca coincide with ours relating to 

 mortgages. The essential characteristic of a mort- 

 gage, however, according to the import and definition 

 of the term, must be the same in all countries, namely, 

 an agreement that the property conveyed or transfer- 

 red, whether real or personal, shall not absolutely go, 

 and belong to the grantee or assignee, in case the 

 debt intended to be secured shall be paid, or the 

 contract, whatever it may be, intended to be guaran- 

 teed, shall be performed within the time and terms 



agreed upon. The rules and incidents of such an 

 hypothecation will therefore have some resemblance 

 uiuler all codes of laws. There is no limitation 

 of the kind of debts or contracts, the payment or 

 performance of which may be secured by mortgage ; 

 for all legal ones may be so guaranteed. What will 

 be a sufficient conveyance of the property, whether 

 real or personal, will again depend on the laws of the 

 place. A conveyance of land, for instance, must, in 

 most countries, be made in writing, and with certain 

 formalities. So in England, the right of property in 

 a ship must appear by a bill of sale. Whatever these 

 rules are by which the absolute transfer of property 

 is regulated, they will equally apply to a conveyance 

 or assignment by way of hypothecation. As real 

 estate is usually required by the laws to be conveyed 

 by written documents, and according to the laws of 

 most places, these conveyances are evidenced by 

 public records of the instruments by which they are 

 made, there is no necessity of an open, visible pos- 

 session of the estate by the grantee, that the public 

 may take notice of the grant, for they may find the 

 evidence of it at the office of public record. The 

 case is not the same with personal property, the title 

 to which is usually confirmed and established to the 

 purchaser by a delivery of the article into his posses- 

 sion. In respect to all chattels, of which manual 

 possession and transfer from place to place is prac- 

 ticable, the delivery by the vender, and actual 

 possession by the purchaser, are very material cir- 

 cumstances in establishing the right of property in the 

 latter. It is, indeed, laid down as a maxim of the 

 English, and also of the American law, that movables 

 cannot be validlysold or mortgaged without a delivery, 

 actual or constructive, to the purchaser or mortgagee, 

 and a possession by him. But this rule is very much 

 modified and relaxed ; not that a delivery to, and 

 possession by the vendee and mortgagee are not con- 

 sidered requisite to establish his title, but a very libe- 

 ral interpretation has been put upon circumstances 

 showing a constructive delivery and possession. The 

 object and policy of the law is to leave the movable, 

 just as it does land, to be used either by the mortga- 

 ger or mortgagee, without affecting their mutual 

 rights and obligations as to the property in the thing, 

 as far as this indulgence can be carried without lead- 

 ing other persons into a misapprehension, and expos- 

 ing them to fraud and imposition in giving credit to 

 the mortgager, upon the supposition of his being the 

 absolute owner of the property hypothecated. The 

 various rules and distinctions by which the mortgage 

 of chattels is regulated in this respect, constitute an 

 essential part of the law upon this subject. But, 

 after all, we may lay it down as a general doctrine, 

 that a mortgaged chattel must be in possession of the 

 mortgagee, in order to render his title secure ; and 

 where the mortgage has, by the law, been permitted 

 still to use the thing, it is only in cases where his 

 possession is, in legal construction, that of the mort- 

 gagee. The most material consideration relating to 

 mortgages, whether of lands or chattels, is the effect 

 of the non-performance of the condition by the mort- 

 gager. This will depend, it is true, in part, upon the 

 terms of the contract of hypothecation or mortgage. 

 If it be agreed between the parties, that, in case of 

 non-performance of the condition of the hypotheca- 

 tion, the mortgagee shall sell the thing hypothecated, 

 whether land or goods, and account to the mortga- 

 ger for the proceeds in satisfaction of the debt or 

 discharge of the obligation intended to be secured, 

 and pay over the surplus, if any, this is all that justice 

 or the law can demand ; and this is, in effect, what 

 the law aims at where the parties do not make any 

 such stipulation, but, on the contrary, agree, either 

 expressly or impliedly, that in case of a non-per- 



