1785.
the offence of the mortgaged premifes fhall not be liable for more than the mortgage debt, though it is otherwife with the mortgagor himfelf. As to the idea that in Pennʃylvania a mortgage is in nature of a common pledge, we find that the authorities extend even fo tar. Demanbry vs Metcalƒ. Gilb. Rep. in Equ. 104. S.C. in Prec. Chene. 419. is the cafe of jewels pawned, which were not permitted to be redeemed, without payment of the pawner's fubfequent note of hand. And, with refpect to the prefect point, the act of Affembly has no other effect, than to extend to our law Courts the power of redemption which Chancery has in England, for if there was no fuch power, upon default on the day of payment, the mortgagor would be without remedy.
After confideration, the president delivered the opinion of the Court as follows..
SHIPPEN, Preʃident.—The cafe comes before us on a rule to fhew caufe, why the proceedings on a Scire Facias on an affigned mortgage, fhould not be faid, on payment on the principal and intereft due on the mortgage ? It is contended, on the part of the plaintiffs, that a fubfequent debt having been contracted with the affignee of the mortgage, the rule fhould not be granted, till fuch fubfequent debt be firft paid.
Being a Court of law, we cannot take upon ourfelves to act as a Court of chancery. We have no power to foreclofe the equity of redemption, or to impofe terms upon a mortgagor applying to redeem. The Courts oƒ law in England have never done it, but under the act of Parliament of 7 G. 2 c. 20, made for the more eafy redemption and foreclofure of mortgages. Under this act, when an ejectment is brought for the recovery mortgaged, if the mortgagor fhal become defendant in the ejectment, and fhall at any time pending the action pay the principal and intereft money due on the mortgage, or bring it into Court, fuch money fhall be taken in full difcharge and fatisfaction of the mortgage and the Court fhall difcharge the mortgagor and compel the mortgagee to furrender and re-convey the mortgagor premifes. There is a cafe under this act which has not been cited at the bar, and which is rather fuller to the point, than any that have been cited : It is in 2 Barn. No. 147. where ‘‘ a rule on the ftatute of
‘‘ 7. G. 2. to fhew caufe why proceedings fhould not be ftaid on
‘‘ payment of the mortgage-money and cofs, was made abfolute ;
‘‘ the leffors of the plaintiff, aʃʃignes of the mortgagee, infifted to
‘‘ bee pad a bond and fimple contract debt due to themfelves in
‘‘ their own right : —Per Curiam : a bond is no lien in equity, unlefs
‘‘ when the heir comes to redeem.’’
The Courts of law in this ftate, have in fome inftances adopted the chancery rules, to prevent the abfolute failure of juftice. But in this cafe, there is no neceffity to ufurp the powers of a Court of chancery. We have a pofitive act of Affembly directing the mode of proceeding upon mortgages, intirely different from the
