§ 1. CH. XXVI. premises, and deliver up upon oath all deeds and writings in his custody or power relating thereto, to the defendant, or to whom he shall appoint: but that, in default of the defendant's paying to the plaintiff the principal, interest, and costs by the time aforesaid, the defendant shall, from thenceforth, stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to the mortgaged premises.1 Decrees to redeem. 8 The plaintiff must, unless the time has been enlarged, attend either personally, or by his attorney duly authorized by power of attorney, at the time and place appointed, to receive the money found due to him; and if, upon that occasion, the defendant does not attend to pay the money, the plaintiff's right to the estate will become absolute. He must, however, in order to complete his title, procure a final order confirming it; otherwise, the decree of foreclosure will not be pleadable. This final order is obtained on motion of course, supported by an affidavit of the plaintiff, or his attorney, of due attendance at the appointed place, and of nonpayment by the defendant of the amount certified to be due." Where the plaintiff does not attend personally, he must, nevertheless, make an affidavit of non-payment." If one of several mortgagees, to whom the amount is due on a joint account, die after the decree, and before the time appointed for payment, a new time for payment must be fixed, before the final order can be obtained." In the case also of a suit for the redemption of a mortgage, a final order is necessary. The decree, in such a suit, usually directs the plaintiff to pay the balance certified due from him within six months after the certificate: in default of which, the plaintiff's bill against the defendant is from thenceforth to stand dismissed out of 1 Seton, 364, No. 1. A decree in Chan- 2 For form of power, see Vol. III. such requisition, and it will be at his own expense. Weeks v. Stourton, 11 Jur. N. S. 278; 13 W. R. 489, V. C. K. 4 Seton, 393; Ford v. Wastell, 2 Phil. 591; 12 Jur. 404; see Whiting v. Bank of U. S. 13 Peters U. S. 6. A release of the equity of redemption, after decree, is equivalent to a final order. Reynoldson v. Perkins, Amb. 564. 5 For form of final order, see Seton, 393; and for forms of motion paper and affidavit, see Vol. III. 6 Seton, 393; see also Anon., 1 Col. 273, where the decree was made absolute, although the mortgagee had not attended during the whole of the appointed time. For form of affidavit of non-payment, see Vol. III. 7 Blackburn v. Caine, 22 Beav. 614; Kingsford v. Poile, 8 W. R. 110, M. R. As to proceedings under decrees and orders in foreclosure suits, see post, Chap. XXIX., Proceedings in Chambers. Court. with costs; and the final order is obtained on motion of CH. XXVI. course, supported by the defendant's affidavit of the default." § 1. decrees re order. The practice of directing that, upon non-payment of money by the plaintiff, the bill shall be dismissed, is not confined to bills to redeem mortgages. Thus, in Lowther v. Andover, on a bill Other filed by a purchaser, for the specific performance of an agreement quiring final for the sale of an estate, it was ordered that a time and place for the payment of the principal money, interest, and costs, should be appointed; and that, in default of payment, the bill should stand dismissed with costs. In such cases, as well as in those above mentioned, a final order is necessary.1 Enlarging time for payment, in closure: In cases of decrees of foreclosure, the Court will, upon application, enlarge the time for payment of the money, even though the final order has been enrolled. Formerly, it would do this without cases of foreimposing any terms upon the defendant; but it afterwards became the practice to do it, only upon the defendant consenting to a reference to compute interest upon the whole sum reported due for the principal, interest, and costs; and the order will still be made in this form, under special circumstances. The ordinary Upon what terms, however, upon which the Court enlarges the time are: payment of the sum found due for interest and costs, and carrying on the account of subsequent interest and costs: the defendant being ordered to pay the costs of the application at once. On these 1 See decree in Seton, 461, No. 1. The decree upon a bill to redeem should fix the time within which the redemption is to take place; and should direct that the plaintiff's bill be dismissed with costs if the money is not paid within the time prescribed. Waller v. Harris, 7 Paige, 168. In Adams v. Brown, 7 Cush. 223, Bigelow J. said: "After the condition of a mortgage is broken, and the mortgagee has entered for breach thereof, the legal estate of the mortgagor is determined, and has become vested in the mortgagee. All that the mortgagor has remaining is an equitable estate; that is, a right to redeem the premises, on paying what is due on the mortgage. When, therefore, he comes into a Court of Equity to regain his legal title and possession, he must pay what is actually due on the mortgage up to the time of redemption, before he can entitle himself to be restored to his legal rights." "The statute of Massachusetts requires the Court to ascertain what sum is due and payable at the time of the decree, not what was due and payable when the bill was filed; and the sum so ascertained is to be embraced in the decree for redemption." If the decree gives a time for redemption after its date, and the mortgagee is in possession, receiving rents and profits during the time prescribed, a further account will be necessary in order to adjust the balance 7 due at the end of the time by the decree 2 Seton, 467. A final dismissal of a bill 3 1 Bro. C. C. 396. 4 See Gray v. Briguardello, 1 Wallace U. S. 627. 5 Ford v. Wastell, 2 Phil. 591; 12 Jur. 404; Thornhill v. Manning, 1 Sim. N. S. 451; Seton, 391. 6 Ismoord v. Claypool, 1 Cha. Rep. 262. 7 Bickham v. Cross, 2 Ves. S. 471; Belt's Sup. 409. 8 Holford v. Yate, 1 K. & J. 677; Bruere v. Wharton, 7 Sim. 488; Whitfield v. Roberts, 7 Jur. N. S. 1268; 9 W. R. 844, M. R. 9 Seton, 391; ib. 390, No. 1; Finch v. Shaw, 20 Beav. 555; Coombe v. Stewart, 12 Beav. 111. For forms of notice of motion and summons to enlarge the time, see Vol. III. terms. CH. XXVI. $1. Where application made to vary certificate. terms, the time has been enlarged for six months, and again for three months;1 and in Edwards v. Cunliffe, a fourth order was made for enlarging the time, though the third was directed to be peremptory. Where the certificate of principal, interest, and costs due on the mortgage is sought to be varied, and the time appointed for payment thereof is likely to arrive before the application to vary is heard, application should be made to have the time for payment enlarged until the application to vary the certificate has been disposed of; but, though this is omitted, the Court, in a proper case, will not make a peremptory order to foreclose, but will order subsequent interest to be computed, and appoint a new time for Where rents payment. And so also, if a mortgagee receives rents after the received be fore day of foreclosure. When decree Time not enlarged in suits to redeem. certificate, and before the day appointed for foreclosure, the Court will not make the decree absolute without the further account being taken, and a new day fixed for payment; but if the rents are received after the day appointed for foreclosure, no further account is necessary.5 In Monkhouse v. The Corporation of Bedford, where a decree of foreclosure was appealed from, the Court refused a motion to suspend the execution of the decree till six months after the appeal should be heard, but directed that, on the defendants paying to the plaintiff the interest due from the time of filing his bill, and his costs (upon the plaintiff's undertaking to repay the same, if the decree should be reversed), and consenting to the appointment of a receiver, the defendants might take six months from the time fixed by the report. And in Finch v. Shaw, the time to redeem, pending an appeal to the House of Lords, was enlarged, on the defendant paying into Court the principal and interest found due, and paying the costs of the suit and the application at once; and the money to be paid into Court was ordered to be invested at the defendants', the mortgagors', risk, and the dividends to be paid to the plaintiff, the mortgagee, he undertaking to refund. Although the Court will, upon a bill for a foreclosure, allow the defendant, upon application, to enlarge the time appointed for payment of the principal, interest, and costs, it will not do so upon a bill to redeem: for then the plaintiff comes into Court saying, "Here is the money: give me my estate;" but in a suit by a mortgagee to foreclose, the Court acts against a person unwilling to pay, and imposes upon him the terms that, if he does not pay, he shall lose his estate.1 CH. XXVI. § 2. Formerly, it was not the practice of the Court to make a declar- Declaratory 2 without atory decree, without granting consequential relief; but now no decrees, suit is open to objection on the ground that a merely declaratory consequential decree is sought thereby, and the Court may make binding dec- relief." larations of right, without granting consequential relief.* It seems, however, that the cases in which declarations of right may be made are not extended; and that the Court is merely enabled to declare rights, without following up the declarations by the directions which, according to the old practice, would have been necessarily consequent upon them. Where some of the parties interested under a legal decree are infants, a declaratory decree, as to their rights and interests, cannot be made. It may be here mentioned that, if an order has been irregularly Discharge of irregular obtained, the party who has obtained it should take the earliest order. opportunity of discharging it: otherwise, any party affected by it may procure its discharge, at the costs of the person who obtained it; and, moreover, no subsequent order to the same effect can be obtained till that has been done.8 sist of four Before we proceed to the consideration of the practice arising Decrees conupon decrees when pronounced, it will not be out of place to make parts: a few observations upon their form. Decrees, in general, consist of four parts:-1. The date and title; 2. The recitals; 3. The declaratory part (if any); and 4. The ordering or mandatory part." 1 Novosielski v. Wakefield, 17 Ves. 417; Faulkner v. Bolton, 7 Sim. 319. 2 See Grove v. Bastard, 2 Phil. 619, 621; 12 Jur. 385. 8 But where there is no statute authorizing it, a bill will not be sustained which seeks merely a declaration of future rights. Cross v. De Valle, 1 Wallac: U. S. 1; Langdale v. Briggs, 39 Eng. Law & Eq. 194; see Lorillard v. Coster, 5 Paige, 172; Hawley v. James, 5 Paige, 442; Bowers . Smith, 10 Paige, 200; Baylies v. Payson, 5 Allen, 473 4 15 & 16 Vic. c. 86, § 50. 5 Per L. J. Turner, in Lady Langdale v. Briggs, 8 De G., M. & G. 391, 428; 2 Jur. N. S. 982, 984; see Garlick v. Lawson, 10 Hare Ap. 14: Greenwood v. Sutherland, b. 12; Jackson v. Turnley, 1 Drew. 617; 17 Jur. 643; Trustees of Birkenhead Docks . Laird, 4 De G., M. & G. 732, 738; 18 Jur. 883; Rooke v. Lord Kensington, 2 K. 6 Webb v. Byng, 8 De G., M. & G. 633;. 7 See Davis v. Franklin, 2 Beav. 369, 375; Tarbuck v. Tarbuck, 4 Beav. 149, 153; Lincoln v. Wright, ib. 166, 172. 8 Pearce v. Gray, 4 Beav. 127, 129. 9 As to the frame and usual directions in 'decrees and orders, see Seton, x-xi. 1-96. The reader is also referred to the excellent collection, contained in that work, of forms of decrees and orders, with practical notes. CH. XXVI. § 2. 1. Date and title. 2. Recitals. 2 1. The decree commences with a recital of the day, month, and year when it was pronounced,1 and of the names of the several parties to the cause: who should have the same titles in the decree as they have in the bill; thus, if the plaintiff is described in the bill as executor or administrator, the decree must be accordingly. 2. Formerly, decrees contained recitals of the pleadings in the cause; and in like manner, a decree upon further directions, according to the old form, recited the ordering part of the original decree, and the report made in pursuance of it. But this is no longer the practice, and, unless the Court otherwise specifically directs, no recitals ought to be introduced in any decree or order of the Court; but the pleadings, petition, notice of motion, report, certificate, evidence, affidavits, exhibits or other matters or documents, on which such decree or order is founded, should be merely referred to.5 In matters of contempt, however, or where the 8 Seton, 4; Bartlett v. Fifield, 45 N. H. 82, 83. Where a decree is rendered, which does not recite the facts upon which it is founded, or which the Court considered as proved, it is error apparent on the face of the decree, for which a bill of review will lie. Burdoin v. Shelton, 10 Yerger, 41; see Peters v. Rosseter, 1 Root, 273; Bacon v. Childs, 1 Root, 466; Sampson v. Hunt, 1 Root, 521; Wernwag v. Brown, 3 Blackf. 458. But it is not necessary to state in a decree that all the preliminary steps towards maturing the cause for hearing were taken; it being intended where the cause was set for hearing, that it was regularly done, unless the party attempting to impugn the decree show the contrary. Quarrier v. Carter, 4 Hen. & M. 242. If the facts found as the basis of a decree are substantially the same as those alleged in the bill, it is not a ground of error in the decree that they vary in some unimportant particulars. Beers v. Botsford, 13 Conn. 146. The practice of reciting the pleadings, &c., in decrees has been abolished in some of the States, and by the Rules in Equity of the Supreme Court of the United States. By Rule 86 of the Equity Rules of the Supreme Court of the United States, it is provided that "in drawing up decrees and orders, neither the bill nor answer, nor any other pleadings, nor any part thereof, nor the report of any Master, nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin in substance as follows: "This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz." [Here insert the decree or order See, for New York, 1 Barb. Ch. Pr. 338; Dey v. Dunham, 2 John. Ch. 182. In Ohio, a final decree need not set out a full statement of the facts on which the Chancellor's opinion is founded. Ludlow v. Kidd, 2 Ohio, 872; Strader v. Byrd, 7 Ohio, 184. In Clapp v. Thaxter, 7 Gray, 384, 387, Thomas J. said: "In this country it is not ordinarily the practice to recite in the decree the bill, answer, or pleadings. But these with the decree constitute what may be considered the record of the cause." In Dexter v. Arnold, 5 Mason, 311, Story J. said: "In the Courts of the United States the decrees are usually general; they usually contain a mere reference to the antecedent proceedings without embodying them. But for the purpose of examining all errors of Law, the bill, answers, and other proceedings are. in our practice, as much a part of the record before the Court, as the decree itself." See Bartlett v. Fifield, 45 N. H. 82, 83. 4 A decree pro confesso against a nonresident should state the facts necessary to show that publication has been made agreeably to the rules of practice. Keiffer v. Barney, 31 Ala. 192. It is not enough for a decree to recite that the defendant has been duly served with process, or regularly notified of the pendency of the suit, but the summons or advertisement should appear in the record. Randall v. Songer, 16 Ill. 27; Hanson v. Patterson, 17 Ala. 788; but see Craig v. Sebrell, 9 Grattan (Va.), 131, where the contrary was held. should appear affirmatively on the face of the decree on record, that the defendant had notice of the process. Allen v. Blunt, 1 Blatch. C. C. 480. It 53 & 4 Will. IV. c. 94, § 10; Ord. |