COLEGATE D. OWINGS' CASE. 405

operate as a decree binding his interests in like manner as if it had
been passed directly against him. For it is now established, that
if a bill filed by a mortgagor for redemption, is dismissed, the
money not being paid at the time specified in the decree for
redemption, that operates as a foreclosure; and is equivalent to a
decree for a foreclosure, (e) Or there may be a decree against both
parties, as where the contest is as to some private right of property,
and it appears from the proofs, that the title is in neither, but in
the State, both parties may be perpetually enjoined from using the
property to the prejudice of the public.(f)

In such cases there can be no danger of surprise, or want of
opportunity to adduce proof; because the indirect, inverted, or
constructive decree, is confined to that subject alone, which the
parties themselves have, by their pleadings, spread before the court.
Here the bill and answer disclose the whole matter in dispute
relative to the promise of the plaintiff, as fully as it could be done
by a cross-bill. The defendant not only sets out and relies upon
the promise of the plaintiff, but attempts to sustain the deed of the
15th of June, upon the ground of its being a mere fulfilment of
that promise. Thus representing the promise as the original
contract. This allegation of the defendant has been put in issue
as a material part of the subject in controversy; and like every
other part of the matter in issue, it may, without the unnecessary
circuity and expense of a cross-bill, be met by such a decree as
justice requires, either in favour of, or against the plaintiff.(g)

Here again, however, we are met by another obstacle, arising
from the present unsound intellectual condition of the plaintiff.
And that too, whether the decree in her favour be upon terms; or
it be in part against her. But a change in the mental condition of
a contracting party, by his becoming afterwards a lunatic, certainly
ought not to release him from his liability. And it has accordingly
been held, that the rights of the parties remain unchanged by such
an act of God. The only difficulty is how to come at the remedy.
If the legal estate is vested in trustees, a court of equity ought to
decree a performance; but if it be vested in the lunatic himself,
that, it was formerly held, might be an insuperable obstacle to any
adequate relief here, because this court could by its ordinary powers

(e) Stuart v. Worrall, 1 Bro. C.. C. 581; The Bishop of Winchester v. Paine.,
11 Ves. 199.—(/) Penn v. Ld. Baltimore, 1 Ves. 454; Barclay v. Russell, 3 Ves.
436; Rex v. Leigh, * Burr. 2146.—(g) Harding v. Handy, 11 Wheat 120; Stewart
v. Mechanics and Fanners Bank, 19 John. 505.