The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-04-19

port his proceedings thereon to that
Court-that Hoggatt afterwards died.
and the appellants were duly appointed
his executors and qualified as euch Il
August 1898 and that Surget also died
in the same year-that since the date AZ
decree, Bingaman has made partia, nav
ments upon the debts ascertained in The
decree, there being still balance due
and unpaid, and that, by reason of the
death of HOggatt and Surget, the decree
could not beexecuted.
It further states that by reason Of the
amendment TO the CONSTITUTE IN adopted
February 9th 1856, abOlishing the Supe-
rior Court of Chancery and the Vice
Chancery Courts. the complainants had
no remedy in the Court where the decree
was rendered for reyivor and execution
Of that decree, because the some was not
"a cause depending in that Court At the
date of tbs amendment 70 the Consti-
tuition aud prays for reviVor In the
names Of Hogaatt's executors, for an ao-
count Of the sum due on the mortgage
debt, and for the appointment Of COM
missioner to sell the property in default
Of payment &c.
A general demurrer to this bill was
filed by Bingaman and the executors of
Surget, which was sustained and the bill /
dismissed; and the complainants have
taken this appeal.
The ground of defence relied on under
the demurrer is, that the Jurisdiction Of
the original cause in which the decree
of foreclosure was rendered, was contin-
ued in the Vice-Chancery Court when
this bill was filed, and hence that tie
Chancery Court Of Adams County had
not then Jurisdiction to entertain this
bill. The provision of the amendment to
the Constitution affecting the jurisdiction
ofthe Vice-C -Chancery Courts is as follows
The Superior Court of Chaneery and
the several Vice-Chancery Courts shall
continue as now organized until the first
Monday in November 1857, for the dis
position of cases now depending therein"
Sd amend. to Constitution, Rev. Code 3s.
The question of jurisdiction, therefore.
depends upon whether she cause-stapd-
ing in the Vice-Chancs,ry Co.:Ts at the
date of the amendment, an dtnree of
foreclosure unexecuted-iS 10 be cSnsid-
cred IS "cause then depending" ia that
Court for if it was, the provision is pos
'ltive that the Jurisdiction was continued
until the first Monday of November 1857,
and of course the Jurisdiction of the Chan
cery Court of Adams County did not
attach in June 1858, when this bill was
iled.
We think it very clear that the cause
vas depending" in the Vice -Chancery
Court after the decree of foreclosure,
upon principle and according to decis-
ions of this Court
1t is true that decree of foreclosure
# mortgage is, for certain purposes q
inal decree. II is final adjudication of
The complainant's debt against the mort
sagor, and of his right 10 enforce it
against the mortgaged property. But the
main object Of the suit is to compel the
payment of the debt; and according to
the course of the Court, that il effected bv
a commissioner appointed to enforce the
decree, and, in default of payment by the
mortgagoF, to sell the mortgaged prop
eTty according to the directions Of the de-
cree. and report his proceedings to the
Court, which are not finally valid until
they are confirmed by the Conrt. The
Court has full control over the proceed
ings touching the sale until final coufir-
nation of the sale, and over the pay
ment and application of the purchase
money between parties to the suit having
conflicting claims to it, if there be any,
until the end and object of the suit Is
finally accomplished. This jurisdiction
is clearly retainedaby the terms Of the
k.leoree, renuirirg the comm 'utiolf q re-
IVgslIIls proceeu.sit.s ~ isslics iorf
iecree and unless the ius
continued, the object Of the e'suit may, pe
afely fail tor want of power to approffS
lte and distribute the purchase money.
and the Court would possess no control
over its commissioner or the purchase of
the mortgsged property. These procee-
dings, subsequent to the decree, are
plainly essential to the object of the suit;
md il the decree be final, in the ordinary
occupation of the term, the Jurisdiction
If the Court would be divested for the
main and necessary purpose of the suit.
Hence it has been held, in cases of this
sort, that the proceedings upon the de-
cree are in teyi until the confirmation, by
the Court, of the acts the commissioner.
Herrod VS. Henderson o Miss. 454, Too
ley VS.. Gridley, 3 S & n 514; and that
the jurisdiction is retained after decree
because it is essential to the execution Of
the decree. Goffvs Robins ct al SO Miss.
1853. Unlike judgment at law, it re-
| quires the further action of the Court to
accomplish the main end Of the suit
and therefore the jurisdiction Of the
cause must necessarily continue in the
1 Court. For the same reason, the rule
held in Cole VS. Miller 80 Miss SO, is not
applicable to decree like the one nm
der consideration here.
1t follows from this, that the jurisdic-
ton of the Vice-Chancery Court in the
original cause was not divested when this
bill was filed, and hence that the demur-
rer was properly sustained.
Decree affirmed.
| II