estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now forever dead. But here again the courts of equity interpose; and, though a mortgage be thus forfeited, and the estate absolutely vested in the mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time to recall or redeem his estate; paying to the mortgagee his principal, interest and expenses: for otherwise, in strictness of law, an estate worth 1000l. might be forfeited for non-payment of 100l. or a less sum. This reasonable advantage, allowed to mortgagors, is called the equity of redemption: and this enables a mortgagor to call on the mortgagee, who has possession of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest; thereby turning the mortuum into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately; or else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be forever foreclosed from redeeming the same; that is, to lose his equity of redemption without possibility of recall. And also, in some cases of fraudulent mortgages, the fraudulent mortgagor forfeits all equity of redemption whatsoever. It is not, however, usual for mortgagees to take possession of the mortgaged estate, unless where the security is precarious, or small; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment, and take the land into his own hands in the nature of a pledge, or the pignus of the Roman law: whereas, while it remains in the hands of the mortgagor, it more resembles their hypotheca, which was, where the possession of the thing pledged remained with the debtor. But by statute 7 Geo. II., c. 20, after payment or tender by the mortgagor of

principal, interest, and costs, the mortgagee can maintain no ejectment; but may be compelled to re-assign his securities. In Glanvil's time, when the universal method of conveyance was by livery of seisin or corporal tradition of the lands, no gage or pledge of lands was good unless possession was also delivered to the creditor; "si non sequatur ipsius vadii traditio, curia domini regis hujusmodi privatas conventiones tueri non solet;" for which the reason given is, to prevent subsequent and fraudulent pledges of the same land: "cum in tali casu possit eadem res pluribus aliis creditoribus tum prius tum posterius invadiari." And the frauds which have arisen since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our ancient law.

DIGBY, HIST. REAL PROP., Ch. V., § 5 (2). Mortgages.The second class of creditors' rights above noticed2 exist when, without the intervention of any legal process, the debtor has voluntarily given his land as security for the debt.

This practice is very ancient. Pledges of land are often mentioned in Domesday. In the time of Glanvill pledges of land were of two kinds, vivum vadium and mortuum vadium. Where a vivum vadium was created, the land was conveyed to the creditor to be held by him for a certain time, during which the rents and profits went towards the discharge of the debt. In a mortuum vadium there was no such arrangement as to the profits. The latter class of security was looked on as a species of usury, and, though not absolutely prohibited, rendered the creditor liable to the penalties of usury. It appears however that upon payment of the debt the debtor might recover the land just as in the case of a pledge of a personal chattel. In the time of Littleton a mortgage had become a species of estate upon condition. The land was conveyed, usually by feoffment, by the debtor to the creditor, subject to the condition that on repayment of the loan by a certain day the feoffor (the debtor) might re-enter. On 1 L. 10, c. 8. 2 Digby, Ch. V., § 5.

the failure of the feoffor to perform the condition, the law refused to regard the fact that the real nature and intent of the transaction was that the land should be held by the feoffee merely as a security for a debt, and insisted on the enforcing of the rules relating to estates upon condition in all their strictness, holding that the estate was thereupon vested absolutely in the feoffee.

In later times, when the jurisdiction of the Chancellor was firmly established, the rights and duties of mortgagor and mortgagee recognized by Equity became wholly different from those recognized by Law. In form the transaction is still at the present day a conveyance of the lands, subject to a condition for re-entry, or more commonly to an agreement for reconveyance by the mortgagee to the mortgagor, on payment of the debt on a certain day, and to a proviso that, until default in payment of the debt, the mortgagor is to remain in possession. So far as the legal estate, or interest at common law, is concerned, the ordinary rules governing conveyances of land apply; no notice is taken of the object of the transaction; the mortgagor, who remains in possession, is considered to have an interest in the nature of a term until default made in the payment of the debt; after default, the whole legal property in the land passes irrevocably to the mortgagee, with all its incidents. For instance, a mortgagor, after default in payment of the mortgage debt, cannot, except under the special powers created by the Conveyancing and Law of Property Act 1881,1 make a valid lease of the lands without the concurrence of the mortgagee. In Equity, however, the real nature of the transaction is regarded, and even after default is made, notwithstanding the terms of the instrument creating the mortgage, the mortgagee will be made to reconvey the land to the mortgagor on payment of debt, interest, and costs. The right which remains in the mortgagor is called his equity of redemption (right to redeem), and is in fact the ownership of the land subject to the mortgage debt.

144 & 45 Vict., c. 41.

CHAPTER II.

PUBLIC RIGHTS.

(a) In Public Lands and Waters.

HALE, DE JURE MARIS, Cap. IV. The narrow sea, adjoining to the coast of England, is part of the wast and demesnes and dominions of the king of England, whether it lie within the body of any county or not.

But though the king is the owner of this great wast, and as a consequent of his propriety hath the primary right of fishing in the sea and the creekes and armes thereof; yet the common people of England have regularly a liberty of fishing in the sea or creekes or armes thereof, as a publick common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive of that common liberty.

The shore is that ground that is between the ordinary high-water and low-water mark. This doth prima facie and of common right belong to the king, both in the shore of the sea and the shore of the arms of the sea. . That is called an arm of the sea where the sea flows and reflows, and so far only as the sea so flows and reflows; so that the river of Thames above Kingston and the river of Severn above Tewkesbury, &c., though there they are publick rivers, yet are not arms of the sea.

5 B. & ALD., 268. By the common law, all the king's subjects have in general a right of passage over the sea with their ships, boats and other vessels, for the purposes of navigation, commerce, trade and intercourse, and also in navigable rivers; and they have also, prima facie, a common

of fishery there. These rights are noticed by Lord Hale; but whatever further rights, if any, they may have in the sea or in navigable rivers, it is a very different question whether they have or how far they have, independently of necessity or usage, public rights upon the shore (that is to say, between the high and low water-mark) when it is not sea, or covered with water. -Per Holroyd, J., in Blundell v. Catterall (1821).

98 N. Y. REP., 642. The seashore is not a highway for public travel upon foot or with vehicles. It is a part of the ocean, and that is a public highway for vessels. Every one can, however, unless the public authorities by lawful action interfere, go upon the seashore between high and low watermark to fish, to bathe, or for any other lawful purpose. But obviously he must use the shore as he finds it, and he can look to no one for any damages he sustains there from any defects therein.-Per Earl, J., in Murphy v. City of Brooklyn (1885).

(b) In Private Lands and Waters.

(I) RIVERS.

HALE, DE JURE MARIS, Cap. 1. Fresh rivers, of what kind soever, do of common right belong to the owners of the soil adjacent; so that the owners of the one side have, of common right, the propriety of the soil, and consequently the right of fishing, usque filum aquae; and the owners of the other side the right of soil or ownership and fishing unto the filum aquae on their side. And if a man be owner of the land of both sides, in common presumption he is the owner of the whole river, and hath the right of fishing according to the extent of his land in length. With this agrees the common experience.

Though fresh rivers are in point of propriety as before prima facie of a private interest; yet as well fresh rivers as salt, or such as flow and reflow, may be under these two servitudes, or affected with them; viz., one of prerogative,