The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1860-04-06

ted to be due. But when the court was
about to pass its decree for the sale of the
mortgaged premises, and ascertain and de-
termine the sum due, the appellant, by his
counsel. appeared and objected to the al
lowance Of more than the legal rate of inter-
est (seyen per cent. J after the notes became
due and payable. Wakefield, on the contra
~, claimed that interest should be allowed at
the rate mentioned in the notes, up to the
time of the judgment or decree for the sale.
And of this opinion was the court, and by
its decree dated June Goth, 1855, adjudged
that the SUM of $10,670 n was then due
and owing for principal and interest on the
said two notes, and ordered the m0rtgaged
premises, or so much thereof as might be
necessary, to be sold to raise that sum.
This decree or judgment was carried by
writ of error, according to the practice in
the Territory, before the Supreme Territorial
Court, and was there, on the 29th of Janu-
airy, 1857, affirmed with ten per cent dam
ages, and also legal interest on the sum
awarded by the district court, amounting
altogether to the sum of twelve thousand FIVE
hundred and thirty-eight dollars and nine
cents. For the payment of that amount,
with costs, the mortgaged premises were or
dered to be sold.
From this last mentioned decision an APP
peal was taken to this court.
There is no question as to the validity OF
the notes or mortgage and it is admitted
that no part of the debt has been paid. The
question in controversy between the parties
is, whether, after the day specified for the
payment of the notes, the interest is to be
calculated at the rates therein mentioned, or
according to the rate established by law,
when there is no written contract on the
subject between the parties. The question
depends upon the construction of a statute
of the Territory, which is in the following
words
Sec. l. "Any rate of interest agreed upon by
the parties in contract, specifying the same in
writing, shall be legal and valid"
SEC. 2. "When no rate of interest is agreed
upon or specified in a note or other contract,
seven per cent. per annum shall be the legal
Now, the notes which formed the written
contracts between the parties as we have al.
ready said, are not set out in full in the
record. We must take them, therefore, as
they are described by the complainant, as
his description is not disputed by the ap-
pellant; and, according to that statement,
the written stipulation as to interest, is i'm
terest from the date to the day specified for
the payment. There is no stipulation in re-
lation to interest, after the notes become
due, in case of the debtor should fail to pay
them and if the right to interest depended
altogether on contract, and was not given
by law in case of this kind, the appellee
would be entitled to no interest whatever
after the day Of payment.
The contract being entirely silent as to
interest, if the notes should not be punctu.
ally paid the creditor is entitled to interest
after that time by operation of law, and not
by any provision in the contract. And in
this view of the subject we think the Ter
ritorial courts committed an error in allow.
ing, after the notes fell due, higher rate of
interest than that established by law, where
there was no contract to regulate it. The
cases of Mac omber vs.. Durham, 8 Wend.,
$50, U. S. Bank vs.. Chaplin, Wend., AL,
and Lu1wick vs.. Huntsinger, S Watts and
pie, and, in the opinion of this court, cor
rectly decided.
Nor is there anything in the character of
this contract that should induce the court,
by supposed intendment of the parties or
doubtful differences, to extend the stipula-
ton for interest beyond the time specified in
the written contract. The law of Minnesota
has fixed seven per cent. per annum as a
reasonable and fair compensation for the
use of money and where party desires to
exact, from the necessities of borrower,
more than three times as much as the legis-
lature deems reasonable and just, he must
take care that the contract is so written, in
plain and unambiguous terms for, with
such claim, he must stand upon his bond.
A question has been raised by the appel.
lee, as to the jurisdiction of this court. The
laws of the Territory have abolished the
distinction between cases at law and cases
in equity, and both are blended in the same
proceeding, without any regard to the forms
and rules of proceeding, either at law or in
equity, and case cannot be removed from
an inferior to an appellate Territorial court,
except by writ of error. And it is urged
that this case, under the laws of Minnesota,
ought to be regarded as case at law, and
removable to this court by writ of error
only, and not by appeal.
But the case presented by the record is
not a case at law, according to the meaning
of those words, in courts which recognise
the distinction between law and equity. On
the contrary, it is proceeding in the nature
of bill in equity to foreclose mortgage,
in which the facts as well as the law are to
be decided by the court and an appeal,
and not writ of error, was the appropriate
mode of bringing the case before this court.
The laws or practice of the Territory cannot
regulate the process by which this court
exercises its appellate power. Nor, indeed,
can there be any such thing as suit at law,
as contradistinguished from suit in equity,
in the courts of the Territory, where legal
rights and equitable rights must be blended
together and prosecuted in the same suit,
without any regard to the rules and practice
of courts Of common law or courts Of equity.
Nor was it necessary that the parties who
acquired liens on the mortgaged premises
subsequent to the mortgage in question
should join in the appeal. They were not
necessary parties in proceeding in equity
to fOrnclOHn tho mortOaUo and none Of Thorn