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

port his proceedings thereon to that
/ Court-that Hoggats afterwards died.
and the appellants were duly appointed
his executors and qualified as such in
August 1855 and that Surget also died
IN the same year-that since the date Of
decree, Bingaman has made partial pay
ments OpoR the debts ascertained in the
decree, there being still balance duo
and unpaid. and that. by reason of the
death OF Hogeatt and Surget, the decree
could not be executed.
IL further states that by reason Of the
amendment 20 the constituti IN adopted
February 9th lS56, abolishing the Supe-
rior Court of Chancery and the Vice
Chsnoery Courts. the complainants had
no remedy in the Court where the decree
was rendered for revivor and execution
Of that decree, because the same WAS not
n cause depending in that Court AZ the
date Of tAis amendment % the Consti-
tuition; aud prays tor revivor in the
names of Hoegatt's executors. for an ac-
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 hill was
hlcd by BingamEn and the executors Of
Surget, which was sustained and the bin
dismsssed and the oomplainants have
taken this appeal.
The ground of defence relied on under
the demurrer is, that the jurisdiction Of
the original cause in which tne decree
OF foreclosure was rendered, was oontin-
ued in the Vice-Chanoery Court when
this bill was filed, and hence that hle
Chancery Court Of Adams County had
not then jurisdiction TO entertain this
bill. The provision Of the amendment 70
the Constitution affecting the jurisdiction
ofthe Nioe-Chancery Courts is as follows
The Superior Court OF Chancery and
the several Nice-Chancery Courts shall
continue rs now organized until the frat
Monday In November 1857. for the dis
position of cases now depending therein"
Sd amend. 70 Constitution, Rev. Code IS.
The question Of jurisdiction. therefore.
depends upon whether the cause-stand-
ing in the Nioe-Chanccry Court at the
date of the amendment, on decree Of
foreclosure unexecuted-is TO be consid-
cred as ''cause then depending" in that
Court for il it was, the provision is pos
tive that the jurisdiction was continued
until the first Monday Of November 1857.
and of course the jurisdiction of the Chan
Gerry Court of Adams County did not
attach in June 1858, when this bill was
filed.
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.
Ii is true that a decree of foreclosure
f a mortgage is, for certain purposes a
inal decree. IL Is n final adjudication of
lhe complainant's debt against the mort
2agor, and OF his right TO enforce it
tgainst the mortgaged property. But the
main object Of the suit is TO compel the
..ayment Of the debt and according TO
he course Of the Court. that Is effected by
a commissioner appointed 10 enforce the
decree, and, in default Of payment by the
mortgagor. TO sell the mortgaged prop
erty according TO the directions of the de-
cree, and report his proceedings 70 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 coufr-
nation OF the sale, and over the pay
ment and application of the purchase
money between parties 10 the suit having
conflicting claims to il. If there be any,
until the end and object of the suit is
finally accomplished. This Jurisdiction
Is clearly retained By the terias oi the .
J yF is s'fisfPsssSEiRs collEa ai9. = ge.
decree aud unless the juftatiiaI ,..r
continued, the object Of the suit Inay. "
mely fail tor want Of power to appfoIh
ite and distribute the purchase money,
and the Court would possess no control
over its commissioner or the purchase Of
he mortgaged property. These procee-
dings. subsequent to the decree, are
plainly essential to the object OF the suit;
nd ii the decree be final, in the ordinary
occupation of the term, the Jurisdiction
# the Court would be divested for the
main and necessary purpose Of the suit.
Hence il has been held, in cases Of this
sort, that the proceedings upon the de-
cree are IA feri until the confirmation, by
he Court, OF the acts ofthe commissioner.
Herrod We Henderson % Miss. 454, Too
ley vs.. Gridley, S 4 NJ 5l4 and that
he jurisdiction is retained after decree
because il is essential to the execution Of
the decree. Goffvs Robins ct al 80 Miss.
1853. Unlike judgment at law, il re-
guires 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
Court. For the same reason, the rule
held in Cole vs. Miller 80 Miss 80, Is not
applicable 10 a decree like the one nm
der consideration here.
IL follows from this, that the iurisdic-
ton Of the Vice-Chancery Court in the
original cause was not Invested when this
bill was filed, and hence that the demur-
rer was properly sustained.
Decree affirmed.
II