estate absolute (k). But if a time had been appointed, and the condition had been that the mortgagor (without more) should pay to the mortgagee 10%, and the mortgagor died before the day (7), then his heir, executor, or administrator, or the guardian of the heir, might tender the money at the time, and save the condition.

If the words of the condition were for payment unto the feoffee or his heirs (m), the money could not be paid to the executor or the assign; if "to heirs or assigns," and the mortgagee transferred the mortgage to another, it might be paid to the first or second feoffee (n); or if the first feoffee was dead, to his heirs, but not to his executors (o); for the law will never seek an assign in law, where there is one in fact (p); if "to heirs, executors, or assigns," it might be paid to either (9).

If the condition was for payment by the mortgagor and I. S. (r), payment by I. S. alone, after the death of the mortgagor, was good; but not during his life.

The mortgagor might tender the money on the appointed day, at any convenient time in which the money might be counted before sunset (s). And he might pay it tied up in bags, and it was at the peril of the mortgagee to miscount it (t). And even if part of the money were counterfeit coin, and the mortgagee accepted it, it was a good performance (u), though the mortgagee in such case might have relief by an action of deceit, or on an implied assumpsit, or by a bill in equity (v).

A doubt was formerly entertained whether a tender in Bank of England notes (although a good ground for equitable relief) was a tender at law to save the condition, because although the Legislature had enacted that on tender of bank notes in satisfaction of a debt and refusal by the creditor, the debtor should not be held to special bail (w); yet the creditor might have proceeded against him by action at law. And although the debtor might on action brought pay the money into Court, and thus stop the course of the action (x); yet he was liable to costs up to that time: and it therefore seemed that a tender in bank notes (if objected to by the creditor (y)) was not such a tender as would save the condition (z).

A modern statute (a) has removed this doubt; by which it is enacted, that after the 1st of August, 1834, unless and until Parliament shall otherwise direct, a tender of a note of the Governor and Company of the Bank of England, expressed to be payable to bearer on demand, shall be a legal tender to the amount expressed in such note, and shall be taken to be valid as a tender to such amount, for all sums above 5l., on all occasions on which any tender of money may be legally made,

so long as the Bank of England shall continue to pay on demand their notes in legal coin; but it is provided that no such notes shall be deemed a legal tender of payment by the Governor and Company of the Bank of England, or any branch bank of the company. But the governor and company are not to be liable or be required to pay and satisfy, at any of their branch banks, notes of the company not made specially payable at such branch bank, although they are liable to pay and satisfy at the Bank of England in London, all notes of the company or any branch bank.

Where a loan of money is made in England of English money, the sum to be paid is English currency, and the debt will carry English interest, and a creditor will have a right to receive payment in England, although the loan is secured by a bond executed in Ireland for so much "lawful money of Great Britain," and by a judgment entered up there; and, consequently, the debt must be calculated as payable in England, without regard to the exchange between the two countries (6). In like manner in Lansdowne v. Lansdowne (c), even a charge under a power on Irish estates of a jointure of 3000l. "of lawful money of Great Britain," was held payable in English, not Irish currency; and in Phipps v. Lord Anglesea, a portion of 12007. "English money" was held payable in England, because there the settlement was made, and there the parties resided; and the charge being a sum in gross, and not a rent-charge issuing out of land (d).

In a case where, prior to the act assimilating the currency of Great Britain and Ireland (e), a settlement was executed in England, by which, after reciting an agreement by the gentleman to charge his Irish estates with payment of 10007. jointure for the lady, he charged the estates with 10007. "sterling lawful money of Ireland,' it was held that the lady was entitled to 1000l. sterling English money on the strength of the recital, and of the fact of there being no legal Irish currency except copper (ƒ).

It was also held, that if an account were stated between the parties, and the balance paid (g), or if a new security were taken by bond or statute (h), it was a good performance of the mortgage condition. "And so in most cases, where by a condition a thing is to be done one way, and to be done to the party to the condition himself, and not to a stranger, and he doth accept it another way, this is a good performance of the condition, volenti non fit injuria (i).

The law was stricter when the condition was to be performed to a stranger, or to affect the rights of third persons (k). Thus it was adjudged (1), that if the mortgagee before transfer or assignment received the money, and returned the whole or part to the mortgagor, it was a good performance of the condition; but where the condition was for payment to the feoffee, his heirs, or assigns (m), and the feoffee

(b) Noel v. Rochfort, 10 Bligh, N. S.

483; 4 Clark & Fin. 158.

(c) 2 Bligh. 60.

(d) Vin. Abr. 208, tit. Condition. (e) 6 Geo. 4, c. 79.

(f) Cope v. Cope, 15 Sim. 118. (g) Co. Litt. 213.

(h) Ibid. 212.

(i) Shep. Touch. 143.

(k) 5 Co. 96; Cro. Eliz. $83; Moor, 708; Co. Litt. 209, b.

(1) Powell v. Bartholomew, Mich. 40, 41 Eliz. B. R.

(m) Goodall's case, 5 Co. 96.

transferred the mortgage and died, and the mortgagor paid the money to the heir of the first mortgagee, who returned part, this was held no good performance to divest the lands from the alienee, or to injure the rights of third persons.

If, at the appointed day, legal tender of the money was made and refused, or no person was ready to receive it, the condition was satisfied, and the mortgagor or his heirs might re-enter (n). But here a distinction was taken between a sum by way of gift secured on land, and a debt (o). The former was in such case absolutely lost, but the latter was considered as still subsisting as a personal duty, and might be recovered by action at law.

It must be further remarked, this right of re-entry on performance of the condition, was neither alienable nor devisable (p), and could be reserved only, as before-mentioned, to the feoffor or his heirs.

Thus mortgages stood at common law, incumbered with the system from which they originated, and attended with ruinous consequences to the unfortunate debtor; and it is difficult to conceive, had the Courts of law been so inclined (which it does not seem they were), on what principle they could have proceeded in giving the debtor relief. The forfeiture was complete; the mortgagee, by the default of the mortgagor, had become the absolute owner of the estate; it could not be divested from him without a reconveyance, and there remained no remedy short of an actual legislative enactment, without disturbing the settled land-marks of property (q).

Happily a jurisdiction was arising, under which the harshness of the common law might be softened without an actual interference with its principles, and a system established at once consistent with the security of the creditor, and a due regard for the interests of the debtor.

It may under this head be lastly remarked, that at the present day, if the condition, instead of determining the estate of the mortgagee, be, that on payment, &c., the feoffee, &c. shall reconvey or re-assign the estate, there, notwithstanding the performance of the condition by payment within the appointed time, an actual reconveyance or re-assignment will be necessary.

(n) Dyer, 181; Co. Litt. 209.

(0) 5 Bac. Ab. 21; Co. Litt. 209, b. (p) Sed nunc vide 1 Vict. c. 26, s. 3, and

quare, if within this act.

(9) Notwithstanding the rigour with which the common law punished the breach of the condition, yet it is clear

from the concurrent testimony of all our old dramatic writers, the chroniclers of their times, that the law was opposed to the better feelings of the people, and that a considerable degree of obloquy attended those who took advantage of it. Thus in Beaumont and Fletcher :

Alathe.-Thou hast undone a faithful gentleman,
By taking forfeit of his land.

Algripe.-I do confess. I will henceforth practise repentance.
I will restore all mortgages, forswear abominable usury.

The Night Walker, or Little Thief.

CHAPTER III.

OF MORTGAGE, WITH EQUITY OF REDEMPTION.

It has been already said, that by the civil law the debtor might redeem the estate on payment of his debt at any time before sentence passed. It has been seen how decidedly opposed to this is the doctrine of forfeiture at common law. The absolute forfeiture of the estate, whatever might be its value, on breach of the condition, was, in the eye of equity, a flagrant injustice and hardship, although perfectly accordant with the system on which the mortgage itself was grounded. No wonder then that our Courts of equity, founded on the principles of the civil law, should, as they increased in power, attempt, by an introduction of those principles, to moderate the severity with which the common law followed the breach of the condition. They did not indeed make the attempt of altering the legal effect of the forfeiture at common law; they could not, as they might have wished, in conformity to the principles of the civil law, declare that the conveyance should, notwithstanding forfeiture committed, cease at any time before sentence of foreclosure, on payment of the mortgage-money; but leaving the forfeiture to its legal consequences, they operated on the conscience of the mortgagee, and acting in personam and not in rem, they declared it unreasonable that he should retain for his own benefit, what was intended as a mere pledge; and they adjudged that the breach of the condition was in the nature of a penalty, which ought to be relieved against, and that the mortgagor had an equity to redeem on payment of principal, interest, and costs, notwithstanding the forfeiture at law.

Against the introduction of this novelty, the Judges of common law strenuously opposed themselves; and though ultimately defeated by the increasing power of equity, they nevertheless in their own Courts still adhered to the rigid doctrine of forfeiture, and in the result, the law of mortgage fell almost entirely within the jurisdiction of equity. There is no record of the time when this equity was first granted. In the before-mentioned cases of Wade (a) and Goodall (b), which were decided towards the end of the reign of Queen Elizabeth, the parties do not seem to have entertained the idea of any remedy existing for the mortgagor's relief, if the forfeiture was established at law, although Tothill mentions a case in the 37th year of Elizabeth's reign (c), in

(a) 5 Co. 115. Ibid. 96.

8

(c) Langford v. Barnard, Tothill, 134.

which the equity was decreed; and it must soon after this time have been generally in practice, for there is a case decided in the first year of Charles the First (d), in which the doctrine seems fully admitted. It was a question as to a mortgage term which had been forfeited by non-payment according to the condition; and the Court held, that although the money was not paid at the day, but afterwards, yet the term ought to be void in equity, as well as on a legal payment it would have been void at law. In the intermediate reign of King James the First, the Courts of equity became established in power, and the same period may be reasonably assigned as that in which the doctrine of equity of redemption was fully recognised.

No sooner, however, was this equitable principle established, than the cupidity of creditors induced them to attempt its evasion, and it was a bold but necessary decision of equity that the debtor could not, even by the most solemn engagements entered into at the time of the loan, preclude himself from his right to redeem; for in every other instance probably, the rule of law, modus et conventio vincunt legem, is allowed to prevail. In truth it required all the firmness and wisdom of the eminent Judges who successively presided in the Courts of equity, to prevent this equitable jurisdiction being nullified by the artifice of the parties.

But those Courts, looking always at the intent, and not at the form of things, disregarded all the defences by which the creditor surrounded himself, and laid down as plain and undeviating rules (e), that it was inequitable the creditor should obtain a collateral or additional advantage through the necessities of his debtor, beyond the payment of principal, interest, and costs; and they established as principles not to be departed from, that once a mortgage always a mortgage; that an estate could not at one time be a mortgage, and at another time cease to be so, by one and the same deed; and that a mortgage could no more be irredeemable than a distress irrepleviable; that the law will control even an express agreement of the parties, and, by the same reason, equity will let a man loose from his agreement, and even against his agreement, admit him to redeem a mortgage (ƒ); and that whatever clause or covenant there may be in a conveyance, yet if upon the whole it appear to have been the intention of the parties that such conveyance shall only be a mortgage, or pass an estate redeemable, a Court of equity will always construe it so (g).

Acting on these principles, they decided that no condition could be valid restricting the right of redemption within a given or limited time, as in Kelvington v. Gardiner (h), where the right of redemption was attempted to be confined to the lifetime of the mortgagor; and in Newcowb v. Bonham (i), where the like attempt was made. And

(d) Emanuel College v. Evans, 1 Rep. in Chancery, 10.

(e) Newcomb v. Bonham, 2 Vent. 364; 1 Vern. 7, 214, 233. Howard v. Harris, 1 Vern. 192; Jason v. Eyre, 2 Ch. Ca. 33.

(f) 1 Vern. 192, et vide East India Company v. Atkyns, Comyns, 349, where

arguendo it is said, equity will relieve, even if the mortgagor take his oath not to redeem.

(g) 5 Bac. Ab. 5.

(h) Kelvington v. Gardiner, cited 1 Vern. 192, et vide Spurgeon v. Collier, 1 Eden's Rep. 55.

(i) Newcomb v. Bonham, 1 Vern. 7,