(DOWNLOAD) "Hershfield v. Griffith" by United States Supreme Court # Book PDF Kindle ePub Free
eBook details
- Title: Hershfield v. Griffith
- Author : United States Supreme Court
- Release Date : January 01, 1873
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 51 KB
Description
Mr. Lyman Trumbull, for the appellant, adverting to the seventh amendment to the Federal Constitution, the Process Act of 1792, the organic law of the Territory, and the Civil Practice Act all set forth in the preceding case (supra, p. 648-650),–and to the same cases as Mr. Leech referred to in the argument there, argued, that a foreclosure of a mortgage–a proceeding in its essence equitable–had been performed through common-law means, and argued further, as Mr. Leech did in the preceding case, that it was not competent for the Territorial legislature of Montana to abolish, as it had sought to do by its Civil Practice Act, the distinction between chancery and common-law proceedings, which the organic act, adopting the Process Act, had recognized; and that this court had in numerous cases so decided. Messrs. J. Hubley Ashton and N. Wilson, contra, contended that a proceeding to obtain satisfaction of a mortgage was not necessarily a proceeding in equity, and adverted to the practice in Pennsylvania, where regarding a recorded mortgage as in the nature of a judicial record, a scire facias was by statute allowed to be issued thereon through common-law courts; the only courts which, with rare exception, the State of Pennsylvania had ever had. It was not necessary, therefore, to assume that the proceeding below had been an equitable one. Being had in courts not courts of chancery, it was to be regarded as a common-law proceeding, and proper. If, therefore, the appeal was not to be dismissed, the decree should be affirmed.