effect, a court of equity is sometimes obliged to marshal the burthen according to the equity of the dif

Revised Code of Mississippi, 1824. Revised Statutes of North Carolina, 1837, vol. i., and it is worthy of remark, that in New-Jersey in particular, there is less innovation upon the common and statute law of the land, as they existed at the revolution, than in any other state. This contributes to render their system of jurisprudence very intelligible, familiar, and attractive to persons educated in the school of the common law, The statute law of Mississippi, under the revised code of 1824, is of the same character, and resembles the statute law of New-York, prior to the memorable revision of 1830. In Delaware, South Carolina, Alabama and Mississippi, equity powers reside in, and are exercised by, distinct and independent tribunals, upon the English model. This was also the case in New-York until 1823, but the exclusive jurisdiction in equity was withdrawn from the chancellor, and equity powers were at that period, by the amended constitution of NewYork, partially vested in the circuit judges as vice-chancellors, and in a special vice-chancellor and in an assistant vice-chancellor in the city of New-York, and the circuit judges, except in the city of New-York, exercised in distinct capacities, a mixed jurisdiction of law and equity. The same mixed jurisdiction is conferred on the courts in Maryland and Virginia, and on the circuit courts in Tennessee and Missouri, and was on the circuit courts in Alabama, until the statute of January, 1839, established separate courts of chancery, and detached them from an alliance with the courts of law. In Florida, power is given by their constitution to the legislature to detach the courts of chancery from the circuit courts and to establish separate courts with original equity jurisdiction. In Virginia, the high court of chancery, with a single judge, was organized, and its powers and proceedings declared in 1792; but it being found productive of great delay, three superior courts of chancery, one for each great district, were established in 1802. Revised Code of Virginia, vol. i. 88. 600. It since appears that the county and corporation courts, and the circuit superior courts, have chancery as well as law powers, and when sitting in chancery, they administer equity according to the course of procedure in the English chancery. 1 Robinson's Practice, 86. In the states of Vermont, Maine, New-Hampshire, Massachusetts, Rhode Island, Connecticut, Ohio, Indiana, Illinois, Missouri, Kentucky, North Carolina, Georgia, and Arkansas, the jurisdiction of law and equity is vested in the same tribunal: but the chancery proceedings are distinct, and carried on by bill and answer, in the circuit court with appeal to the supreme court. In Michigan, under the constitution of 1835, a separate court of equity was established with plenary powers and jurisdiction; and the chancellor holds his court of chancery in the general circuits in which the state is divided, subject to equity appellate jurisdiction in the supreme court. The administration of justices in equity in that state under Chancellor Farnsworth, and Chancellor Manning, as reported in Harrington's Walker's Report, appears to be enlightened and correct, and does

ferent claimants, in order to preserve a just proportion among those who are bound in good conscience to a just

distinguished honor to their state. In Vermont each judge of the supreme court is a chancellor with the usual chancery powers, within his judicial district; and in Georgia, and perhaps in some other states, cases in equity are generally decided by special juries, (Dudley's Geo. Rep. 8. R. M. Charlton's Rep. 134, 135. 138,) though the association of a special jury with the judge in equity, is held to be a matter of practice, and not of legal obligation. Ibid. 184. In some of those states, as in Maine, New-Hampshire, and Rhode Island, chancery powers are confined to a few specified objects, or assumed in hard cases from necessity. In Maine by their revised statutes, the supreme court, may by a bill in equity, compel the specific performance of a contract in writing when the party has not a plain and adequate remedy at law. But with few exceptions, the contract must have reference to the realty and not the personalty. Bubier v. Bubier, 24 Maine Rep. 42. In other cases, as in Georgia for instance, equity powers are granted in all cases where a common law remedy is not adequate; and in Indiana, chancery powers are given not only to the supreme court and to the circuit courts, but certain chancery powers are also conferred on the judges individually in vacation time. In Louisiana, the distinction between law and equity, according to the theory of the English law, seems to be entirely unknown. There is no distinction in that state in the proceedings or between the law and equity powers and jurisdiction of the court. 16 Louis. Rep. 196. 4 Rob. Louis. Rep. 82. But in the federal courts in Louisiana, and in some of the other states already mentioned, the jurisdiction of law and equity are distinctly maintained. In the province of Upper Canada, they have a vicechancellor exercising the equity powers of the court of chancery in England, and in the provinces of Nova Scotia and New Brunswick, the Masters of the Rolls are by provincial statute constituted judges of the court of chancery and the responsible advisers of the chancellor, (and the Lieutenant Governor is ex officio chancellor,) except on appeals from their own de cisions. In the Revised Statute Code of Connecticut, published in 1784, p. 48, and again in 1821, p. 195, the courts having jurisdiction of suits in equity, are directed to proceed according to the rules in equity, and to take cognizance of such matters only wherein adequate remedy cannot be had in the ordinary course of law. But under this general grant, the equity system in Connecticut appears in practice to be broad and liberal. See Swift's Digest and Connecticut Reports, passim. In Ohio, the chancery powers conferred upon the supreme court and the courts of common pleas sitting as courts of chancery, by the statutes of 1831, entitled "An act directing the mode of proceeding in chancery," are large and liberal, and would appear to constitute a very adequate jurisdiction. The digest in that statute of chancery powers and proceedings, is executed with much skill and ability. The same thing may be said of the chancery jurisdiction under the territorial act of Michigan, of April 23, 1833. In Massachusetts, the equity powers of

contribution, and in order to prevent one creditor from exercising his election between different funds unrea

the supreme judicial court are quite limited. The power to enforce redemption is confined to a statute provision, and the mortgagor must redeem in three years after entry by the mortgagee. See Erskine v. Townsend, 2 Mass. Rep. 493. Kelleran v. Brown, 4 ibid. 443. Skinner v. Brewer, 1 Pick. Rep. 468. Jackson on Real Actions, 49. But in relation to trusts created by will, the courts of probate and the supreme judicial court have concurrent and general chancery powers, subject to appeal from the first to the last of those tribunals. So the supreme judicial court has ample equity powers to enforce by bill, and a course of proceeding in chancery, the specific performance of contracts concerning land, as against heirs, &c. Mass. Revised Statutes, 1835. Under the Plymouth Colony Laws, the court of assistants had not only supreme criminal and civil jurisdiction at law, but such matters of equity as could not be relieved at law, such as the forfeiture of an obligation, breach of covenants, and other like matters of apparent equity. Brigham's edit. 1836, p. 260. In Pennsylvania, equity powers have been gradually assumed by their supreme court, from the necessity of the case, and for the advancement of justice, with the aid of a few legislative provisions. The provincial legislature of Pennsylvania, from its earliest existence, made repeated efforts to unite chancery powers with those of the courts of law, by the acts of 1701, 1710, and 1715, but those acts were successively disallowed by the royal council in England. The constitution of 1776, and the acts under it, gave to the courts of law a few specific equity powers, and the constitution of 1790 continued the same grant, and under the latter instrument various equity powers have been gradually granted, assumed, and amalgamated with the common law powers of the courts. Those principles of equity have been digested from the acts of the legislature, and the decisions of the supreme court, with diligence, ability, and judgment, in a clear and neat little code of equity law, under the unpretending title of “An Essay on Equity in Pennsylvania, by Anthony Lausset, jun., Student at Law, 1826."

In January, 1835, the commissioners appointed to revise the civil code of Pennsylvania, made an elaborate report to the legislature, upon the administration of justice, in which they proposed to invest the supreme court and the several courts of common pleas with specific but more enlarged equity powers than had heretofore been exercised. They recommended, and in reference to the established jurisprudence, usages, and practice in Pennsylvania, perhaps wisely recommended, not the establishment of a separate court of chancery, nor the union of a court of chancery with the existing courts of law, but the incorporation or amalgamation, as heretofore, of the peculiar powers and practice of chancery with those of the common law courts in the requisite cases, and with the adaptation of the old common law forms of proceeding and existing remedies to new equity cases and purposes. Under this recommendation the legislature of Pennsylvania, in June, 1836.

sonably, and to the prejudice of another. The principle of equity in these cases is clear and luminous, and it is deeply ingrafted in general jurisprudence."

III. Rights of the mortgagee.

(1.) His right to the possession.

We have seen, that the mortgagee may, at any time, enter and take possession of the land, by ejectment or writ of entry, though he cannot make the mortgagor account for the past, or by-gone rents, for he possessed in his own right, and not in the character of receiver.

gave enlarged equity powers to the supreme court and the several courts of common pleas, and to be exercised according to the practice in equity, prescribed or adopted by the Supreme Court of the United States. Again in June, 1840, the equity power of the courts was still further extended. But the equity jurisdiction of the courts is still only a limited and selected portion of equity power. There is not an universal or even a general equity jurisdiction conferred on the Pennsylvania courts. The organization of their courts is ill-suited for such a purpose. Gilder v. Merwin, 6 Wharton, 540, 541. In New-York in 1846, the state convention which revised the constitution, effected an entire revolution in the judicial system of the state. They abolished the existing courts of chancery, the supreme court, the office of vicechancellor, assistant vice-chancellor, judge of the county courts, supreme court commissioner, master in chancery, and examiner in chancery, (Constitution of 1846, art. 13, sec. 8,) and as a substitute they ordained that there should be a supreme court, having general jurisdiction in law and equity, and with power in the legislature to confer equity jurisdiction in special cases upon the county judges, (Id. sec. 14.) This was leaving the organization, powers, proceedings and practice of the supreme court in painful difficulty and uncertainty, while they annihilated, at the same time, the well defined and well settled jurisdiction and practice of the courts of law and equity which had previously existed. This would seem to be, on the first impression, a rash and unwise innovation, and especially when we consider that a separate equity jurisdiction had been exercised upon the English model, and with the English spirit and instruction from the first settlement of the country, and had formed our habits and shaped our learning, and proved to be eminently propitious to the growth and character of the New-York jurisprudence.

• Sir William Harbert's case, 3 Co. 14. 1 Powell on Mortgages, 342, b. Stevens v. Cooper, 1 Johns. Ch. Rep. 425. Scribner v. Hickok, 4 ibid. 530. b Lord Hardwicke, in Mead v. Lord Orrery, 3 Atk. 244, and Higgins v. York Buildings Company, 2 Atk. 107. Parker, Ch. J., in Wilder v. Houghton, 1 Pick. Rep. 90. Howell v. Ripley, 10 Paige, 43.

He may, without suit, obtain possession of the rents and profits from a lessee existing prior to the mortgage, on giving him notice of his mortgage, and requiring

the rent to be paid him, and in default he may *165 distrain. The case of Moss v. Gallimore applies the right and the remedy of the mortgagee, to the rent in arrear at the time of the notice, as well as to the rent accruing subsequently; and that case was cited, and the principle of it not questioned, in Alchorne v. Gomme;Þ though it would seem to be now understood in chancery, that the mortgagor is not accountable as receiver for the rents, and that the rent due prior to the notice belongs to the mortgagor. But the case of Moss v. Gallimore has been considered as good law, to the whole extent of it, by the courts of law in this country, and the distinction taken is between a lease made by the mortgagor prior, and one made subsequent to the mortgage. In the latter case, it is admitted, that the mortgagee cannot distrain, or sue for the rent, because there is no privity of contract, or of estate, between the mortgagee and tenant. But if the subsequent tenant attorns to the mortgagee after the mortgage has become forfeited, he then becomes his tenant, and is answerable to him for the rent.e The statute of 14 Geo. II., c. 19., expressly

d

■ Moss v. Gallimore, Doug. Rep. 279. Buller, J., in Birch v. Wright,

1 Term Rep. 378.

2 Bing. Rep. 54.

• Ex parte Wilson, 2 Ves. & Beame, 252. The mortgagee not in possession is not entitled to the emblements. Toby v. Reed, 9 Conn. Rep. 216. As between mortgagor and mortgagee, the property in timber cut and being on the premises is in the mortgagee subject to an account. This is the rule in Massachusetts and Maine. Grove v. Jenness, 19 Maine Rep. 53. The purchaser of mortgaged premises sold on foreclosure is entitled to the growing crops. Shepard v. Philbrick, 2 Denio Rep. 174.

Sanders v. Van Sickle and Garrison, 3 Halsted, 313. M'Kircher v. Hawley, 16 Johns. Rep. 289.

e

Jones v. Clark, 20 Johns. Rep. 51.

464. It was held, in Pope v. Biggs,

Magill v. Hinsdale, 6 Conn. Rep.

Barnw. & Cress. 245, that a mortga

gee may entitle himself to the rents due at the time of notice, as well as to