mortgaged to him when he indorsed the $3,000 note; and therefore that his claim for that indorsement ought to be postponed to the claims of Seymour & Co. to the amount of $10,000 and interest thereon under their first mortgage, and to the full amount of the notes loaned by them upon the security of their second mortgage. We have expressed these opinions in view of the probable amendment of the plaintiff's bill, but our advice to the superior court must of course be predicated upon the record as it stands, and therefore must be that the report be set aside. In this opinion HINMAN, C. J., and DUTTON, J., concurred. BUTLER, J., dissented. The foregoing case involves questions of great practical interest to the profession; and especially to business men engaged extensively in large commercial, or banking transactions, where advances are necessarily made from day to day under such circumstances that it is not always convenient to reach the registry, before determining whether to make a new acceptance or not. For this reason it seems extremely desirable that the law should be settled, as far as possible, upon some basis which shall commend itself to the business instincts of men, as well as to their sense of justice. It is a subject which, first and last, we have had occasion to examine very extensively, and in regard to which it seems to us, there are some practical difficulties, not entirely easy of satisfactory solution. See 2 Am. Law Reg. 1. 1. In regard to the first and second propositions contained in the head notes of the present case, there is now no question whatever. 2. And the fifth proposition is equally unquestionable also, wherein the Court adopts the general rule of equity law, that notice of facts, sufficient to put the party on inquiry, and which if such inquiry had been pursued, in the ordi nary mode in which it is reasonable to suppose prudent men, interested in the question, would have been likely to pursue it, would have led the party to the discovery of certain facts, is equivalent to express notice of such facts. And that it is not incumbent upon the party interested in giving such notice, to interpose any formal protest against the other party doing an act, which will operate as a fraud upon his rights. But on the other hand, it is the duty of all parties to act honestly upon such knowledge, as they have, and to be reasonably watchful not to do an act which may with reasonable probability be expected to operate to the injury of any other party having a vested interest in the same property. In this last declaration the Court have departed from the rule laid down in McDaniels vs. Colvin, 16 Vt. R. 300, where express notice of a subsequent incumbrance is required in order to stop further advances upon a mortgage to secure future advances, and in addition to this, a formal protest against the first mortgagee continuing to increase the indebtedness under his mortgage. That is a rule which exists nowhere except in Vermont, and will, doubtless, be over ་ ruled there when the Court find a convenient case in which to change the rule. The seventh proposition in the principal case, is equally unquestionable. 3. The third and fourth propositions seem to come more into the region of debate. One very important inquiry naturally arising in all these cases is, in regard to the effect of the registry of a subsequent mortgage. We have never been able to comprehend the hardship of requiring the prior mortgagee, to secure future advances, to take notice of the state of the registry, at the time he actually makes his advance. The question has been so ruled in two of the States: Spader vs. Lawler, 17 Ohio R. 371; Ter Hoven vs. Kerns, 2 Barr 96; Parmentier vs. Gillespie, 9 Barr 86. We apprehend such a rule will be likely finally to prevail in all the American States, either by construction or legislation. Its innate reasonableness and justice, and great convenience, recommend it so much to favor that we believe the Courts will finally feel compelled to adopt it, and, if they do not, that the legislatures will interfere. But, at present, the Courts in most of the States adopt the English rule, where no general registry exists, and require notice to the first mortgagee, or what in equity is equivalent, knowledge of such facts as would put a prudent man upon inquiry in matters essentially affecting his interest. This is a very just and reasonable rule, where there is no registry. It is reasonable, too, where a party has once acquired a vested interest in a security' which is registered, not to require him to watch the registry. Accordingly the cases all hold, that if the first mortgagee has become bound to make the advances his security is perfect, and not liable to defeat or qualification by subsequent incumbrances. And the case of Gordon vs. Graham, 2 Eq. Cases Ab. 598, pl. 16, S. C. 7 Viner's Ab. 526, held that if the first mortgagee has acquired the right to make future advances, it could not be defeated by any subsequent incumbrance unless the party had, bonâ fide, made advances in ignorance of the prior mortgage, a case which could never occur under the registry system, where the first mortgage had been placed upon the registry. But this case is now overruled in England, Hopkinson vs. Rolt, 7 Jur. N. S. 1212, May, 1861. And as it never had any proper application in this country under our registry system, it has seemed probable to us, that the Courts, after coming to the conclusion that the mere right to make future advances is liable to be defeated, by a subsequent mortgage to secure an existing debt, will not feel the necessity of requiring any other notice of the subsequent mortgage except the registry. For if the first mortgage is treated as merely inchoate, and as creating no equity until the actual advance under it, or the assuming of some responsibility under it, it is a virtual shadow or form until after the advance is made. And if it is treated as a valid incumbrance as to all advances made before the registry of a subsequent mortgage, it is giving it all the force and effect, which it seems to us reasonably to require. But the weight of authority is, at present, in the opposite direction. 4. If we correctly understand the extent of the fourth proposition, and it is intended to place two mortgagers of different dates, both to secure future advances, precisely upon an equality, and to require each to make inquiry of the other before making further advances, it seems to us that the Court have, perhaps, carried their own rule beyond its just limits. The knowledge of the existence of mortgages subsequently made by the mortgagor, if those mortgages were upon the registry, ought not to affect the prior mortgagee, as it seems to us, beyond the knowledge of the contents of the deed. He may fairly be presumed to have gone to the registry and learned the contents of the deeds. The one which was given as security for an actual liability assumed before the execution of the deed will, of course, bind the first mortgagee not to make any further advances under his deed, except as relying upon a lien subsequent to that created by the later mortgage to secure an existing obligation. But as to the mortgage given merely to secure future advances, it rather seems to us he is not bound to regard that as a present subsisting incumbrance until he is either notified of advances under it, or else knows of some fact Supreme Court of Iowa. M'CORMICK vs. RUSCH. 1. A State Legislature may constitutionally pass an act which provides that if it shall be shown to the satisfaction of the Court that a defendant is in the actual military service of the United States, any action against him in the Courts of such State, shall stand continued during the period of his actual service. 2. Such an act does not conflict with the provision of a State Constitution requiring "all laws of a general nature to have an uniform operation." 3. Nor does it infringe section 10, article 1, of the Federal Constitution, which prohibits any State from passing laws to impair the obligation of contracts. 4. The prohibitory clause of the Federal Constitution discussed, and some of the leading cases reviewed and commented upon by WRIGHT, J. This action was commenced in October, 1862. Defendant, by his attorney, made the proper showing that he was in the actual military service of the United States, and moved for a continuance. Plaintiff resisted the motion, upon the ground that the statute authorizing such continuances was unconstitutional, and also because no plea or answer had been filed. He also moved for judgment for want of plea. This motion was overruled and the continuance granted. Plaintiff appeals. S. E. Brown, for appellant. H. R. & E. Claussen, for appellee. WRIGHT, J.-We are satisfied that it was not necessary for the defendnat to answer before obtaining the continuance. The statute is: "That in all actions now pending or hereafter brought in any of the Courts of this State, *** it shall be a sufficient cause for a continuance, on motion of the defendant, his agent or attorney, if it shall be shown to the satisfaction of the Court *** that the defendant is in the actual military service of the United States, or of this State, and upon such showing being made, said action shall stand continued during the actual service of said defendant in the military service." Laws 1862, ch. 109, sec. 1. The theory of the statute is, that such defendants are necessarily absent, engaged in the service of the country, that while thus situated they should not be called upon to defend suits and actions brought against them at home, and to compel them to plead or answer before asking a continuance, would frequently defeat the very object and purpose of the statute. We need do no more than suggest that the advice and assistance of the party are frequently absolutely necessary to the proper preparation of the pleadings, and the law provides for such continuances as much on account of such known necessity, as to give him an opportunity of being present at the final trial. To say that until he pleads it is not known that he has a defence, and that unless he has some defence, there is no necessity for a continuance, substantially begs the whole question. It is because, among other things, he is not in a position to present this pleading, that the law secures him the continuance. To hold that he shall not have the benefit of a law because he fails to do that which the law itself presumes him incapable of doing, would make the statute inconsistent, and defeat the very object proposed by the legislature. Is the statute unconstitutional, and if so, upon what grounds? To the suggestion that it conflicts with Sec. 6, Art 1, of our State Constitution, which provides that "All laws of a general nature shall have a uniform operation," we give but little weight. The provision was not intended to cover or reach any such case. In the first place, it may be doubted whether it is a law of a "general nature" within the meaning of the Constitution. This conceded, however, why is not its operation uniform? It gives the same rule to all persons placed in the same circumstances. It does not prescribe one rule for one citizen or soldier, and another for his neighbor, if they are in the same situation. We have a statute. regulating continuances on account of the absence of witnesses, which gives a uniform rule to all litigants. And yet one may be entitled to a continuance and another not. This results not because a different rule is prescribed for each, but because one brings himself within its terms, and the other does not. So all persons in the actual military service of the United States, or of this State, can claim the benefit of the statute, and any one can have the same benefit if in the service. Those that are not, are not entitled to the same advantage, so to speak, because in the discretion and wisdom of the legislature it was deemed inexpedient. And yet this advantage may be and is extended to all upon the same terms: See Dalby vs. Wolff, 14 Iowa 228, and cases there cited. But does this law impair the obligation of contracts, and is it therefore in conflict with Sec. 10, Art. 1, of the Constitution of the United States? The inquiry here presented has been most elaborately discussed by the ablest legal minds of the nation, and is yet invested with very great difficulty. This difficulty results not so much from any ambiguity in the language used, as from a seeming effort to make it mean more or less than was intended. The language under consideration is: "No State shall pass any law impairing the obligation of contracts." The pivotal words, as applied to the present case, are, “impairing," and "obligation;" the latter being the most important. In discussing this question we find the following among other definitions: Justice WASHINGTON in Ogden vs. Saunders, 12 Wheat. 318: "The obligation of a contract is the law which binds the |