for exercising this difcretionary jurifdiction. will ceafe, the whole power of a court of equity, may be transferred to the courts of law, and there will be one uniform fyftem of jurifprudence, which will extend to every cafe, and may be administered by one tribunal. How foon, or whether this period can ever arrive, is a subject of fpeculation too refined for this time. It will be fufficient to confi. der the present state of things, and leave the poffible improvement to future ages. In this chapter I ain to contemplate very concifely the general principles which have been adopted in raising the préfent fabric of equitable tribunals, and which may ftill be exercifed in finith. ing and ornamenting that noble fuperftructure, with every poffible perfection. To comprehend in a feientific manner the fcope of law. and equity, the student ought to have a thorough knowledge of the principles of human nature. The inveftigation of that fubject be-. longs to a very different work from the prefent It will be fufficient to make a few remarks upon the moral character of man. Nothing exhibits a more glorious fubject of contemplation than man, when we take into view his intellectual, active, and moral powers. En-. dowed with a moral fenfe, he is capable of diftinguishing between right and wrong, good and bad, virtue and vice, and to afcertain the moral quality of every action. The diftinction of right and wrong, is grounded on utility. The ultimate object of human purfuit, is human happiness. Thofe actions which promote it are good, thofe which contravene it, are bad. But when we are treating of equity, it may be obferved, that the rights of property only, come under confideration, and that we need not trace moral principles to their fullest extent. The moral fenfe, confcience, or the approbation or difapprobation of one's conduct, which is common to the human race, is the eriterion to determine what is right and what is wrong. This announces to every human being, that an act which injures another in his property, is wrong; however, it may be cloaked with legal forms, or coloured by a deceitful appearance: and that a just compenfation for the injury, ought to be made to the party who fuftains it. This is the standard of human conduct, and must be the pole ftar to guide courts of equity. The leading maxims of equity as well as law are, that wherever there is a right, some court must be empowered to make it effectual, and that for every wrong there is a remedy. When the rules of law will not fupport a right, or redress a wrong, then equity may interpofe. The fubject is to be contemplated on the scale of perfect justice. The moral fenfe must be the rule of judging. But ftill it must be remembered, that in forming the decifion, regard must be had to the collective fyftem of equity, that prior decifions, if any, must be attended to, and that the fundamental principles of law, grounded on political calculations of general good, must not be contravened. Another rule of high confequence is, that where a man by art, fraud, or circumvention, obtains a legal advantage of another, or has so shielded himself by the forms of law, as to take an unfair and unjust advantage of another, equity may grant relief. It is manifeft, that there will be many inftances, where a perfon will bring himself within the letter and defcription of the law, exprefsly for the purpose of taking an undue advantage of another. Here the defign of the law is not only eluded, but proftituted to the purposes of injuftice. Many inftances of this kind may be found where relief has been granted. He that wants equity, muft do equity, is an important rule of justice. No man shall have the aid of a court of equity, tho he has a colourable claim, unless he comes forward with pure and honest intentions. It will therefore always be deemed a good defence, to fhew that in the very cafe which the petitioner has brought, he denies the justice which he demands. So the defendant may rebut the equity of the demand, by fhewing that the claim ought not to be fubftantiated. If a perfon prays for the fpecific performance of a contract, the defendant may avoid it by proving it was obtained by fraud, impofition, or mistake. Another leading principle is, that no man is entitled to the aid of a court of equity, where that aid becomes neceffary by his own fault. Thus where a man nullified his fecurity for money loaned, by erafing the word intereft, to elude taxation, and then inferted it again, he cannot be relieved in equity, on account of the the wrongful act done by himfelf, tho the juftice of the debt remains unimpeached, as it refpects the debtor, because he had no intention to injure him. Allied to this are the rules, that no man fhall take advantage of his own fraud or wrong, and that no man fhall make a defence against justice, more than a claim. Where two perfons stand in the fame equity, he who has the legal right shall prevail. CHAPTER FOURTH. OF MORTGAGES. IN the profecution of thefe enquiries, I fhall first confider the power of courts of equity in refpect of real property; then of perfonal property; and laft the mode of trial. The most important branch of equity jurifdiction, as relative to real estate, is with respect to mortgages. To difcufs this fubject with perfpecuity and accuracy, I fhall confider, I. The Definition of an Eftate in Mortgage. 2. How a Mortgage is confidered in Equity. 3. Of the Intereft of the Mortgagee and Mortgagor, in the Premises. 4. Of the Equity of Redemption. 5. Of Priority of Incumbrances, and tacking prior and latter Securities together. 6. Of Mortgages as relative to Hufband and Wife. 7. Of the Funds to pay Mortgages. 8. Of the Payment of Interest on Money lent on Mortgages. Of the Method of accounting. A mortgage is, where a man for a specific fum of money borrowed of, or for a debt due to another, grants him an eftate in lands, as a fecurity for the repayment, on condition that if the mortgagor repay the fum lent, or difcharge the debt, at the time mentioned mentioned in the mortgage, then the conveyance to be void, and the mortgagor to have right to re-enter. The land is confidered as a pledge for the payment of the money, and the estate is conditional, defeasible on the payment of the debt. The ufual practice is to annex the condition to the deed, fpccifying the fum due, and the time within which it is to be paid. but a bond, or any separate written agreement, containing the conditions, will conftitute a mortgage: but the agreement must be in writing, or it will be void by force of the ftatute of frauds and perjuries. It is a very common practice for the creditor to take a bond or note for the debt, and alfo fecurity by mortgage, conditioned to be void on payment of the bond or note: in which cafe the mortgage is confidered as collateral fecurity for the debt. In England, it is the ufual practice to grant long terms of years by way of mortgage, with condition to be void on the repayment of the mortgage money and alfo a covenant, that the mortgagor and his beirs, will on default of payment, convey the freehold of the mortgaged lands but this mode has never been adopted in this state. 2. How a Mortgage is confidered in Equity. : : In law, the mortgagee is confidered as the proprietor of the premifes, fubject to be divefted only by a ftrict performance of the condition but in equity, the tranfaction is confidered as a mere perfonal contract for the loan of money, and the land a fecurity for the due payment thereof and the mortgagor notwithstanding the folemnities of the conveyance, is looked upon as the actual own. er of the land. The payment of the debt determines the interest of the mortgagee, but till that time he is entiled in equity to receive and enjoy the profits. Every contract for the loan of money, fecured by the conveyance of real estate to the lender, and not made in contemplation of an eventual arrangement of property, is in equity deemed a mortgage and all private agreements between the parties, to alter in any fubfequent event, its original nature, or prevent the redemption of the eftate pledged, upon payment of money borrowed with intereft, are void. For were fuch agreements fuffered to prevail, it would put it in the power of every mortgagee to take advantage of the neceffities of the mortgagor, : by / 2 Black. Com. 158. Bac. Abr. 633, m I Vez. 361. Pow. Mort. 14. * 2 Atk. 495. Pow. Murt. 18. by inferting reftrictive claufes to prevent a redemption of the estate pledged, unless upon terms injurious to the latter. In equity therefore, the right of redemption is confidered as infeparably incident to a mortgage, and cannot be restrained: it being a maxim, that an estate by the fame inftrument of conveyance, cannot be a mortgage at one time and at another time cease to be fo. 3. Of the Interest of the Mortgagee and Mortgagor, in the premifes. • The execution of the mortgage conveyance veft in the mortgagee, a legal title to the lands, and he may immediately enter thereon; fubject however to be difpoffeffed, upon performance of the condition, by payment of the mortgaged money at the day limited. In England, the ufual way is to agree, that the mortgagor fhall hold the land till the day affigned for the payment, and that the mortgagee, fhall not intermeddle with the poffeffion till default of payment. In this ftate it is not ufual to make fuch written agreement but it is ufually understood, that the mortgagor shall remain in poffeffion of the premifes, till the day affigned for the payment of the money, and it is the conftant practice for the mortgagee, to permit the mortgagor to retain fuch poffeffion: Where there is a written agreement to remain in poffeffion, the mortga gor may be considered as tenant for years: if no written agreement, as tenant at will, with a legal right to become revested with the title of the lands, upon the payment of the mortgage money, within the time limited: but on failure, the estate becomes abfolute in the mortgagee, and he may take poffeffion thereof, without any poffibility at law of being afterwards evicted, by the mortga gor. But the mortgagor then has the equity of redemption, by which, on payment of what is juftly due, he may be let in by a court of chancery to redeem. The eftate of the mortgagee is affignable, devifeable, defcendible, and may be taken by the levy of an execution, as real eftate. In which cafes the affignee, devifee, heir, and creditor ftand in the place of the mortgagee. If there be not fufficient perfonal eftate to pay debts, it might be taken by the executor or adminiftrator in the fame manner as real estate. • 2 Black, Com. 158. Pow. Mort. 66. 4. Of |