1831.] BETHLEHEM-ANTHRACITE COAL TRADE OF THE U. S. 47 eller's home. This house is very large, three stories they came near enough, the attack was begun by the Colonels Gage and Burton. This was a signal to the Indians in ambush, who immediately gave the war whoop, and raising from the thickets, discovered themselves on both sides, flanking our men in volleys, which did incredible execution. The advanced guard, being now between three fires, immediately gave way; but being rallied with much difficulty by the officers, they gave one fire, and then returned in the utmost confusion, and threw Dunbar's regiment, which was behind them, into the same disorder: They were with unspeakable difficulty and trouble once more rallied by their officers, and stood one fire from the enemy, but then without returning it, both the regiments fled, with the utmost terror and precipitation, deserting their officers, who though alone kept their ground till of 60 only 5 remained that were not either killed or wounded.The Virginians who formed the rear still stood unbroken, and continued the engagement on very unequal terms near three hours, but were then compelled to retire. These letters give the same account of the Gen-in front. The mourners place themselves aroun 1 it, eral as that in the Gazette, but add that all our baggage, provisions, and even military chest, is fallen into the enemy's hands. Other letters, however, contradict this particular, and say that the artillery, baggage, and military chests are safe, being two days behind the army. There is, indeed, some reason to hope that this is true, from the account published by authority, for it is there said, that the general left the baggage, &c. be--the date of his birth and death. Among the many hind him twenty miles, that he might march with the greater expedition; the very reason of his leaving them behind seems to prove, that he went forward without halting, and that it was impossible the men with the baggage should keep near him; so that, as they must have been considerably behind him when the action happened, it is probable the broken troops joined them in their retreat, and proceeded safely with the baggage to Will's Creek. STATES. The following table exhibits with as much accuracy as our means will allow, the quantity of anthracite sent to market during the last ten years, with the annual increase of exportation, by which it appears that the ag gregate amount in that period is equal to 525,825 tons. It will be observed also that the increase of exportation last year alone amounted to 75,00 tons: Quantity sent to market. In 1820 Annual Increase. The European troops, whose cowardice has thus injured their country, are the same that ran away so shamefully at Preston-Pans: To prevent, however, any ANTHRACITE COAL TRADE OF THE UNITED unjust national reflections, it must be remarked, that though they are called Irish regiments, they are not regiments of Irishmen, but regiments on the Irish establishment, consisting of English, Irish, and Scots, as other regiments do. It is, however, said, that the slaughter among our officers was not made by the enemy, but that as they ran several fugitives through the body, to intimidate the rest, when they were attempting in vain to rally them, some others who expected the same fate, discharged their pieces at them, which, tho' loaded, they could not be brought to level at the French. On the other hand, it is alleged, the defeat is owing more to presumption and want of conduct in the offi cers, than to cowardice in the private men; that a retreat ought to have been resolved upon the moment they found themselves surprised by an ambuscade; and that they were told by the men, when they refused to return to the charge, that if they could see their enemy they would fight him, but that they would not waste their amunition against trees and bushes, nor stand exposed to invisible assailants, the French and Indian rangers, who are excellent marksmen, and in such a situation would inevitably destroy any number of the best troops in the world. BETHLEHEM. FROM A TRAVELLER'S NOTE BOOK, We visited this charming town, on our way to Philadelphia, and found it to exceed our most sanguine expectations. It has become the resort of many from various parts of the Union, and some families from "the city," spend a part of the summer here. The accommodations are good. We stopped at the large establishment kept by Atherton, a quaker, who with his wife and daughter, do every thing to make it the tray 1821 1,073 608 tons 1822 2,440 1,167 1823 5,823 3,583 It is not believed that the present year's exportation will far exceed that of the preceding year, although the increase in consumption must be in a two-fold proportion, if correct inferences may be drawn from well authenticated facts. The number of steam engines in the city of Philadelphia alone using anthracite coal, is represented to be between 60 and 80, to which must be added those of the city of New York, as well as several steamers. The rapidly increasing consumption in private families and public offices is also to be considered as a large and important item in the estimate of causes which tend to the support of our proposition. The surplus quantity remaining on hand last spring was about thirty thousand tons, which would leave an amount consumed of 151,000 tons, and an increase in consumption of 45,000 tons over and above the former years. Rumors unfavourable to the prospects of the coal trade have been industriously propagated of late by disappointed or designing men to prejudice our interests. With confidence we appeal to every reflecting man for the truth of the assertion, that the aspect of the coal trade was never more strongly indicative of future successful operations than at present. Coal is now cheaper than any other fuel-its advantages combined with this circumstance will indubitably insure it a preference. The quantity of anthracite sent to market having increased from less than one thousand to one hundred and eighty-one thousand tons in ten years, we will hazard our reputation on the prediction, that at the expiration of ten years hence the demand will equal one millions of tons. By reference to the above table, it will be seen that the quantity in 1825 far exceeded that of any preceding year; this was owing to the additional supplies from the Schuylkill region, which produced a glut in the market. Many individuals engaged in the business at that time lost money-but a revival followed, and the coal trade flourished. The value of coal lands rose and every branch of the business became prosperous. If any interruption to this prosperity has occurred, it must be attributed to the great and unexpected influx of the article from the Lackawana region. The exportation during the present year from the different regions will not, we think go beyond two hundred thousand tons, and as the demand must, as before stated, increase in a double proportion, a steady market the ensuing season may be fairly anticipated. EASTON. We scarcely look into an exchange town or village paper, but we see flattering accounts of the improvements going on in building, &c. This is en couraging and shows the general prosperity of the country. Our town has never been celebrated for springing up or increasing with unhealthy rapidity; its progress in improvements and population, has been steady and progressive. Our streets within the last few years have been much improved, levelled and regulated -our side-walks will now compare with those of any other town of its size in the state. Our buildings are, generally, good and substantial, and owned by those who occupy them. This season there will be erected at least fifty dwelling houses, many of them splendid brick buildings, and covered with slate. The increase of population in this place has been singularly regular for the last thity years. In 1810 the population was about 1625-in 1820 about 2450-in 1830, 3700; showing a gain of a trifle more than 50 per cent. in each ten years. The increase of population and business in and since 1830, is in a still greater ratio. The Lehigh affords a fine basin on either side for busi; ness, for near a mile above the dam at its mouth. It is now wharfed or walled as far as the bridge on the Easton side, and on the other to the outlet lock of the Lehigh canal, and preparations are on foot for extending the wharves on this side of the river.-Whig. WILKESBARRE, Jue 29. Lime-Last week we visitd the lime-kiln spoken of in the last Democrat. The quarry is upon what is called the little mountain in Newport, about three quarters of a mile from the Hanover line, and about two miles from the river. The stone is of a bluish cast, and when burnt, appears to consist of mixed substances. After it is slacked and mixed with water, the lime is of a gray color. That there is strong lime among it, we have no doubt, but we fear too great a proportion of it is of an inferior substance. It may answer for laying rough wall, and perhaps for the first coat in plastering houses. Mr. Hilford, who is at work quarrying the stone, thinks when he reaches farther into the rock, he will find purer lime stone, and that which will make white lime. We understood a similar kind of rock was discovered (JULF some time since in Kingston, and a quantity of it burnt. It is said it answered so well for some purposes, that it is in contemplation to burn another kiln. Messrs. Editors-At seven o'clock yesterday morning (Sunday,) I saw standing at Gadsby's door one of the Phoenix Line of Stages, which had just reached our city, having started from Baltimore with a full load of passengers, on the same morning at three o'clock,—an astonishing facility of accommodation and rapidity of travelling, when we recollect that the same route has frequently, of late years, taken us an entire day to get through. In the morning, between the hours of three or four, and seven or eight, is certainly during the summer season, the most judicious time to choose to travel, which the public are much indebted to this line for adopting. It will be seen, that by this expedition from Philadelphia to Washington, a passenger may dine at the former city, (which he leaves at half-past 12,) and have time to shave and dress before the earliest breakfast hour the next day at the Metropolis. Monday, July 4. ARIEL. A few weeks since we took occasion to speak of some Indian Relics that were discovered near the Canal Basin in this place. Since then the workmen on section No. 18 of the Canal, about two miles this side of Bainbridge came upon one end of an old Indian burial ground. The bones had so completely gone to dust, that they could only be distinguished from the natural soil by a difference in color. A great many articles of use and ornament were discovered; there were crocks, hatchets, tomahawks, arrow heads, bullets, buck shot, thimbles, beads, pipes, &c. The pipes are made of clay, and are spoken of as being very perfect and beautiful, with the head of a fox engraved on the bowl; so highly is one of them valued by the finder, that he has refused to take less than five dollars for it: all the thimbles had a small hole in the top-they were probably strung together as or naments: the beads were of different kinds, and unlike any we had before seen. It is thought that a short dis tance from where the excavation was made towards the river, the earth would be found to be filled with these curiosities.-Columbia Spy. WILKESBARRE, June 29. Susquehanna and Delaware Rail Road Company.We understand the Engineer in the employ of this Company, intended to begin a survey of the route on the 27th inst. commencing at the summit or dividing land, between the waters of the Susquehanna and Delaware. Assisted by Mr. Drinker, one of the Commissioners, it is his intention to first take the level, &c., from the sum. mit to the Susquehanna, near Pittston.-Susquehanna Democrat. The Canal Boat, Luzerne, Captain Bird, arrived at Nanticoke dam, on Thursday last, loaded with 21 tons of merchandise from Philadelphia. Owing to leaks in the canal, Capt. B. could not proceed in it farther than Northumberland, and rather than wait until the necessary repairs are made, he brought the boat in the river from that place to the dam. This is the first canal boat that has brought loading to the Valley. Much credit is due Capt. Bird for his enterprise, and exertions to reach the Valley with his boat, when opposed by so many and great difficulties. We hope soon to be able to announce that the canal is navigable.-ib Printed every SATURDAY MORNING by WILLIAM F. GEDDES, No. 9 Library Street, Philadelphia; where, and at the PUBLICATION OFFICE, IN FRANKLIN PLACE, second door back of the Post Office, (back room) subseriptions will be thankfully re ceived. Price FIVE DOLLARS per annum, payable annually by subscribers residing in or near the city, or where there is an agent. Other subscribers pay in advance. HAZARD'S REGISTER OF PENNSYLVANIA. DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE. VOL. VIII.-NO. 4. EDITED BY SAMUEL HAZARD. PHILADELPHIA, JULY 23, 1831. From the Journal of Law. NO. 186. inson, 207.) I certainly do not pretend that the prac tice of the civil law is to have the force of precedent in the courts here: but, in a case like the present, it seems fair to say that it goes far to efface the impression of dicial sale of lands, and of course we have no English juridical novelty. At the common law there is no ju OPINION OF CHIEF JUSTICE GIBSON. We take pleasure in placing before our readers the able opinion of Chief Justice Gibson, in the case of The Corporation v. Wallace, which is interesting, not only on account of its general importance, but as pronounc-authorities directly in point. In chancery the practice ing the law on a question about which great diversity of opinion, if not a decided inclination the other way, had prevailed in this part of the state, not only in the profession, but among the community. On the 21st of March, the Chief Justice and Judge Huston delivered the opinion of the court on the main point, from which Judge Ross dissented; and Judge Huston the opinion of all the judges but the Chief Justice, on the residue of the case. We have omitted to publish that part of the opinion of the chief justice which relates exclusively to the particular cause. CORPORATION V. WALLACE. is to pay off incumbrances out of the purchase money, for any cause whatever, be satisfied out of the purchase money, it of course remains there, as it does here, a charge on the land. But in chancery the process of No prudent judge will disregard an opinion of the sale is such, as to admit of exceptions that have no place bar. During an experience of fifteen years in this in a sale on execution which requires prompt payment court, I have seldom found one of its decisions re- by the purchaser, and deprives him of an opportunity ceived with disapprobatian at the bar, which did not to see to the application of the purchase money, and Contain something which called for revision. But pro- by reason of which the rule is applicable in all its fessional opinion, though valuable as a test of judicial force, to judicial sales of chattles at the common law. As decision, is not infallible. The principal recognition to these, liens created by the act of the parties, require in Willard v. Norris, was viewed in a particular part of transmutation of the possession, and as goods taken in the state, as a portentous novelty: yet a little consider-execution must be actually seized, the reversionary in ation would have shown it to be a familiar part of the terest of the owner (so to speak) cannot be levied, and jurisprudence of every civilized people, whether an- for this reason perhaps it is, that goods pawned cannot cient or modern. Of this, as regards the civil law, be taken in execution before they are redeemed. But which with local modifications, is the code of continen- conflicting liens are created by delivering conflicting tl Europe, there is not a doubt, "The principal ef executions to the sheriff; and it is perfectly settled fect," says Ferriere, "of an adjudication by decree, that a ale on a younger execution divests the lien of (judicial sale) is a transfer of all the rights of property the older one, which takes, not the goods in the hands to the highet bidder, so that he cannot be disturbed of the purchaser, but their price in the hands of the by lien creditors, or mortgagees, who have not made sheriff. Would it not then have been strange, if our resistance to the decree; nor after sale and confirma- progenitors had not applied the rule of the common tion, by any claimant of title to any part of the estate law to land when they subjected it to sale on a common levied, because the decree extinguishes (purge) all law execution AS A CHATTEL. They carried the conserights of property, mortgages, incumbrances, quit rents, quences of the principle further than is demanded here, (charges reelles et foncieres) in default of opposition (Dict and held that a judicial sale divests, without compensade droit verbo Saisie reelle.") In the language of the tion out of the purchase money, the wife's inchoate law, says Denisart, who says the same thing, "the word ESTATE of dower-an interest in the land certainly as opposition signifies an act by which the execution of a sacred as that of a mortgagee. At the end of a century, judgment by default is resisted, having for its object in which the most curious legal antiquarian might be the prevention of a sale, till the interests of the oppos- challenged to produce an instance of a sale on an older ing party are secured." (Collect, de jurisp. verbo oppo- judgment, after there had been a sale on a younger sition.) "The resistance being in substance the defence one, the practice of satisfying the older judgments out of a terre tenant to a scire facias, is to be of course be- of the purchase money, received the sanction of a direct fore the decree of confirmation. The sale is strictly judicial recognition; and as far as I have ever heard, judicial, being pursuant to an adjudication, and the pro- with the most perfect acquiescence of the legislature, ceeds distributed by the court among the creditors ac- the bar, and the people. The rule, therefore, having cording to the priority of the liens or classes. (Dict de been incontestably established, as regards incumbran droit verbo ordre.) Thus we have distinctly announced ces generally, it will require decisive arguments to to us a principle of the civil law, by which not only prove a mortgage to be an exception. are liens extinguished, but even an estate paramount to the lien of the seizing creditor is divested. Such also is the rule of the maritime law, which distributes among lien creditors the proceeds of a ship sold by order of the Court of Admiralty on a younger lien; an instance of which is found in the case of the Madonna, (6 Rob. This has been attempted on two grounds; the first, that the mortgagee is not an incumbrance, BUT THE OWNER OF AN ESTATE IN THE LAND, has been abandoned by one of the eminent counsel, who have argued for the plaintiff. He has thought proper to occupy the second ground, that the lien of a mortgage is CREATED EXPRESSLY BY THE ACT OF THE PARTIES, while the lien of a judgment is but incidental. Of these in their order. 50 JUDGE GIBSON'S OPINION. (JULY In form, a mortgage is certainly a conveyance; but it is unquestionably treated at law here, in the way it is treated in equity elsewhere, as a bare incumbrance, and the accessory of a debi; as between the parties it is a conveyance, SO FAR AS IS NECESSARY TO ENFORCE IT AS A SECURITY. As regards their persons, the mortg gor is the owner, even of the legal estate. This distinction, which, if attended to, will be found to reconcile the ap. parently jarring dicla of the judges, is as firmly estab-equitable principles, in courts purely of common lished by the practice and decisions of the courts in Pennsylvania, as any other in the law. If the mortgagee had the title for any other purpose than to afford him a remedy, it would not be easy to account for the absence of all the incidents of his supposed ownership: yet his estate if such it be, certainly cannot be set up as outstanding to bar an ejectment by the mortgagor, or an action of trespass, or a proceeding to obtain compensation for a privilege under a statutory license; nor is it subject to taxation, or lien by judgment, or sale on execution, or courtesy, or dower. It poes not break the descent of the estate, or require a a reconveyance to revest thetitle, or prevent it from vesting in a purchaser, or af ect the validity of a second mortgage. In answer to the last remark it has been said, that a second mortgage is always of the equity of redemption, which I admit may be the subject of hypothecation. But what will be said of a third mortgage after the equity of redemption also has been conveyed? Contrary to the professional sentiment here, it would be simply void, unless there be equity of redemption springing from equity of redemp tion in an infinite series, like certain mathematical quantities, which, though perpetually vanishing, are perpetually in view. Such a mortgage would be in capable of confirmation, even by payment of the preceding ones, unless the vesting of the estate in the last mortgagee were supposed to have awaited the event: a process not at all in unison with our notions of Conveyancing. But this qualification of the mortgagee's legal estate, seems to be recognized, in some degree, even in England. "A mortgagor in possession," says Mr. Powel, gains a settlement, because the mortgagee, notwithstanding the form, has but a chattel, the mortgage beig only a pledge to him for security of his money; and the original ownership of the land still residing in the mortgagor, subject only to the legal title of he mortgagee, so far as such title is requisite to the end of his security." (Law of Mortgages, 221) That the gal effect of the instrument should have been modified by time and circumstances, will not appear incredible to those who are familiar with the change produced by usage in the legal effect of a policy of insurance, which has been fixed, not by the letter, but the course of trade, which, with frequent discussion, repeated decisions, and length of time, has reduced the meaning of a very incoherent instrument, to a reasonable degree of certainty. (Marsh on Ins. 304.) Again, by the Stat. 7 and 8. W. 3. C. 25. a mortgagor in possession is treated as a freeholder so far as to en itle him to vote for members of parliament. This, being a matter of arbitrary enactment, may be said to prove nothing: it discloses, however, the dawn of sentiment which has been carried much further by the courts. Even in the state of New York, where the distinction between equity and law is as scrupulously observed as in any part of the world, it has been explicitly declared in Hitchcock v. Harrington, (6 Johns. 290) to be the settled doctrines of their courts of LAW, that the mortgagor is seized as to all persons but the mortgagee; and the principle thus broadly announced, has been carried out in subsequent cases. "Not only the original severity of the common law," says the distinguished commentator on American law, "treating the mortgagor's interest as resting on the exact performance of a condition, and holding the forfeiture or breach of the condition to be absolute by non-payment and tender at the day, is entirely relaxed; but the narrow and precarious character of the mortgagor at law changed under the more enlarged jurisdiction of the courts of equity. THEIR INFLUENCE HAS REACHED THE COURTS OF LAW, and the case of mortgage is one of the most splendid instances in the history of our juris prudence, of the triumph of equitable principles over te conical rules, and of the homage which those princi ples have in THEIR ADOPTION IN THE COURTS OF LAW." (4 Kent, 151-2.) If such, then, be the progress of law jurisdiction, what might we not expect it to be in courts which are a forum for the joint adminis tration of law and equity? The principle that the mortgagor is seized as to every one but the mortgagee, was asserted by this court in the Schuylkill Navigation Company v. Thoburn, (7 Sergt. and R. 411.) and in Ricket v. Madeira, (1 Rawle, 321.) it was applied to the interest of a mortgagee, which was held to be ex empt from execution because he had not an estate in the land. In Scott v. Croasdale, (1 Yeates, 75.) it was determined that dower is barred by sale on a mortgage executed by the husband without the concurrence of his wife; from which it is clear, that the mortgage was not viewed as the conveyance of an estate, (for the es tate of the wife passes only by the joint act of herself and her husband) but as a legal incumberance; like a judgement on which dower may be divested on the principle that the land is sold as a chattel. These cases, with Wentz v. Dehaven, (1 Serg. and R. 312.) and M'Call v. Lenox, (9 Serg. and R. 32.) in which a mortgage was in all essential respects put on a footing with a judgment, very satisfactorily disclose the judi cial sentiment of Pennsylvania; to which may be added Blanchard v. Colburn, (16 Mass. 346.) as showing a similar sentiment in Massachusetts. It is supposed, however, that Simpson's lessee v. Ammons, (1 B⋅nney, 175.) in which it was held on the authority of York v. Stone, (1 Salk, 158 ) that a mortgage by a joint tenant is an act of severance, looks the other way, inasmuch as it is thought to be incapable of producing that effect without operating as a conveyance. We know how eagerly a pretext is sought to elude the odious incident of survivorship, as for instance the execution of an elegit on the joint estate of one of the tenants, which is held to work a severance, (Gilb. on Execution, 41.) yet tenant by elegit has but a chattel. (2 Inst. 396.) An inference has been attempted also from Lancaster v. Dolan, (1 Rawle, 321.) which, it seems to me, it does not warrant. It was held there that a mortgagee is a purchaser within the 27 Eliz. and entitled to all the advantage which the character can give him in a conflict with a volunteer. But that proves nothing which has not already been conceded. The title doubtless passed as far as was necessary to the protection of his security, and so far the mortgagee was a purchaser in the strictest sense of the word. At one time it was doubted whether a judgment creditor is not a purchaser within the true intent of our recording acts, and it has been barely held that he is not; yet no one ever suspected him of being the owner of an estate in the land. As to the other ground of the inference from the position there taken, that a mortgage is a conditional sale, every one the least conversant with the doctrine of powers, knows that in the execution of them, form is substance; and that a mortgage, being in form a conditional sale, may be a valid execution of a power to sell without conveying the estate, to every intent and purpose.— The case of Ripple v. Ripple, (1 Rawle, 386.) has also been cited; but it seems scarce necessary to say, that the nature of the incumbrance there, was such as to preclude it from being deducted from the purchase money. Finally, it has been determined, that the mortgagee may maintain ejectment against the mortgagor; but that is entirely consistent with the principle conceded at the outset, that the mortgagee is the owner, so far as is necessary to enable him to enforce his security. In fact, the only case in which a contrary sentiment has been intimated, is that of Moliere's Be 51 requires us to retrace our steps. The act which chang ed the law laid down in Willard v. Norris, was a constitu tional exercise of legislative power; and regarding it as furnishing a rule for cases in time to come, it will be executed by this court, in good faith, even to the let ter. But we will never consent to attribute judicial authority to a branch of the government, whose pro vince it is to enact the law, and not to administer it; nor surrender the constitutional franchises of the judi ciary, by bowing to every intimation of a judicial opin ion that may be supposed to proceed from the legisla tive halls. 1, therefore, do not acknowledge the legit imacy of the argument drawn from a supposed intima tion of legislative interpretation, that the opinion held by this court in Willard v. Norris, was an erroneous one. I admit that a prospective intimation by a course of legislation on the basis of a state of things suppo-ed to exist, is a strong evidence that it does not exis', inasmuch as it gives rise to rights founded partly in en actment and partly in usage; but here the existence of the law as settl d in Willard v. Norris, was taken for granted as the foundation of the act which challenged it, and which was a legislative affirmation of the very fact which it is the purpose of the argument to dis. prove. All other legislative acts, however, are in unison with the judicial sentiment, that a mortgage is purely an incumbrance. lessee v. Noe; (4 Dall. 450.) but there the opinion on the particular point to which I allude, was not only an obiter one, (for the point did not arise) but that of a bare majority, and it was beside formed at a time when the professional sentiment was in a state of transition. Although now too late to question it in a case like the one supposed, it is hazarding little to say, that if an expression of judicial opinion on it had been delayed a few years, the result would have been different. sides, the opinion of the chief justice was founded in some degree on a distinct provision of the same act. So much for judicial decision, by which a mortgage has, with a single exception, been treated as an incum brance, and the legislature seems to have acted on the same principle as a fundamental one. In the act of 1705, by which the mortgaged premises are subjected to execution, the mortgagee was treated as an incum brancer, and not as the owner, even at that early day. As an accessory of the former ownership, the equity of redemption, although originally a creature of chancery, was considered to be inherent in the land, even without the existence of a court of equity to protect it; and the estate of the mortgagee, which would, by the terms of the grant, have become absolute by a breach of the condition, continued to be viewed as a contingent one. In truth, the inconvenience of treating the estate as it had stood at law, without a court to give relief on equitable terms, would have been intolerable. Accordingly, But taking it to be an incumbrance, it is said to differ the remedy provided was not to enable the mortgagee from a judgment in this, that it is created directly and to foreclose, but to get his money out of the land by a expressly by the contract, while the lien of the judgment sale or extent, "as in case of OTHER lands sold or deliv- is the effect of the law; and this is the second principal ered ON EXECUTIONS FOR DEBTS OR DAMAGES." He was ground of the argument. Admitting for the present thus put exactly on a footing with a judgment creditor; this difference to exist, it is not easy to see what objec and it is worthy of notice, that the legislature, even then, tion it furnishes to the application of the general princi recognized as applicable to a sale on a mortgage, the ple. It is said, that to discharge the incumbrance principle of judicial sales, subsequently applied in prac- against the mortgagee's consent, would impair the oblitice to all other cases, by directing that the purchaser gation of the contract. It is obvious, that the argument hold clear, not only of the equity of redemption, but of would not touch the case of a mortgage which is due, all incumbrances whatever; thus disposing of the whole inasmuch as payment by the mortgagor, or any one in estate at once, instead of the particular interest of the his place as a purchaser of the equity of redempt on, execution creditor. In the act relative to mortgages, would stand with the very letter of the contract. But, passed in 1820, the instrument is treated purely as an how would it affect the contract, to compel the mortincumbrance, its lien being declared to attach, not at gagee to receive satisfaction even before the day of paythe execution of the deed, as it would necessarily have ment? Even as respects the acts of the legislature, the been supposed to do, had it been considered as arising constitutional inhibition relates only to contra ts which from the vesting of the estate, but from the period of exist at the nactment of the law. I believe no one its being entered on record. So, in the acts of 1822 ever doubted the power of the legislature to regulate and 1823, the mortgagee is spoken of merely as the the obligation of contracts prospectively, or to take it holder of a security, and one that may be released in away altogether, as was done some years since, in repart, or gradually discharged by indorsement of pay. gard to the contracts of certain unchartered banks. ment, as the instalments become due. These are the The parties contract subject to the provisions of the earlier and principal acts that seem to bear upon the law which enter into their stipulations, and thus tacitly question. But it is supposed, that a different notion is become a part of their agreement; and when the law perceptible in the act of 18th of February, 1824, by requires that a mortgage be subject to payment, in cerwhich guardians and other trustees are authorized to tain circumstances, before the day, it is as much an oriinvest the monies of the trust "in real securities," at ginal condition of the contract as if it had been express. such rate of interest as the orphans' court may direct; ed in terms. But a decision of the judiciary is so far and hence it is supposed that the securities thus spoken different from an act of the legislature, that it declares of are mortgages; that the legislature deemed it neces no new law; and consequently can never operate as an sary to the purposes of the trust, that the investment ex post facto. It merely recognises a rule, so long reshould be permanent; and that to protect it from inter- spected in practice, as to authorise a presumption of its ference by the other creditors, it must have been con- having been adopted originally by common consent, sidered that the mortgagee had an estate in the land. and in that aspect is treated as having been the law It seems to me this train of suppositions is entirely gra- from the beginning. Such was the origin and growth tuitous. If the legislature had intended to designate a of the custom which gives the tenant the way going mortgage, they would have done so specifically, instead crop, and impairs the obligation of the contract result of using a generic term. Beside, there is no reason to ing from its apparent terms, so far as to give the tenant impute an intention to restrain the investment to this an interest beyond the expiration of his lease. No well species of security, when a bond and warrant, or a re-advised judge will claim a right of legislation. Inde deemable ground rent, or a conveyance in trust, with power to sell, would all equally answer the description, and two of them the object supposed to be intended. It cannot be doubted then, that the legislature had no view to the point mooted here. At its last session, however, it must be conceded that the legislature viewed the matter in a light entirely different, and it has been suggested that a due deference to its opinion pendent of the fact that all legislative power is placed |