2 Merrivale, 1. 2 Howard's Eq. Side. 496. June Term, 1821. (a) 3 Br. C. C. 489. 1bid. 495. 1 Atkins, 75. S Vesey, 557. established by a uniform course, that the solicitor may rely safely upon it, although deviating from that in other cases. Lord Eldon has said, "that ancient and uniform practice constitutes the law of the court as much as a positive order.” The case is sometimes out of the ordinary course, and attended with circumstances which induce the solicitor to pursue as strict a práctice as in general cases of account. This is done from greater caution, but is not necessary. If the peculiar circumstances of a case were to determine whether it was requisite or not, there would be an end of all certainty and precision of practice. On leaving the order, a summons is taken out, wherever a party has appeared, which may be underwritten, "to attend upon the computation of the amount directed by the above mentioned order." It was before observed, that the summons must be served, although the bill is taken pro confesso for want of answer after appearance. And such is the rule in Ireland. "Where a bill is taken pro confesso, and an account directed to be taken, the défendant's attorney is to be served with summonses, to attend the officer thereon, as if the defendant had appeared on the hearing." On the day of the return of this summons, the report may be drawn up, and dated. The parties should on this attendance, see to the accuracy of the computation, and the allowance of all credits. It is proper to do this at that time, as no draft of the report issues, nor is any other summons taken out. This rule is founded on general practice, and certainly is proper, because in nearly all these cases, nothing is to be attended to but accuracy in the calculation, In the case of Pell v. where there were some spe cial circumstances, the solicitor objected to the confirmation of the report, because he had not been served with a summons to peruse the draft. But the Chancellor said, that practice was not necessary on this reference. The Master having drawn his report, delivers it without further proceedings to the solicitor of the complainant. If therefore any matter is stated on the attendance, which requires further time to examine or discuss, the Master should adjourn. The following are some of the most important rules which the Master may be called upon to apply on this reference. It is fully established in England that interest cannot be computed on a bond beyond the penalty. (a) Our supreme 6 414. court has adopted a contrary rule. (b) Whether it would be 5 Vesey, 329recognized in our chancery or not, is at least doubtful. There (b) 3'Caines, is scarcely a doctrine of equity supported by such a number of 49. authorities. I am aware but of one in contradiction to it. The following case is of considerable importance; as I apprehend, it authorizes a computation beyond the penalty, wherever a mortgage accompanies the bond. Clarke v. 107. Abingdon, "Estates had been conveyed to trustees to secure the pay- 17 Vesey, ment of bonds in which the grantor was surety. One of the bonds was given on the same day on which the deed was dated. The Master refused to go beyond the penalties. On exceptions, the Master of the rolls said,-In this case, the creditor has two securities; one by bond, the other by mortgage. If he sues upon the former, he cannot have interest beyond the penalty; but the mortgage is to secure payment, not of the bond, but of the sum for which the bond was given, together with all interest that may grow due thereon. The same sum is therefore differently secured by different instruments; by a penalty and by a specific lien. The creditor may resort to either, and if he resort to the mortgage the penalty is out of the question. The mortgage is not for that. The penalty is not alluded to in the mortgage.-Exception allowed." I presume the circumstance of the penalty being recited in the mortgage would be immaterial. The mortgage usually is for the better securing the said debt, or the said sum of money mentioned in the said bond, or in its condition. in Brinkerhoff Where the principal of a bond is not due, or one or more So reported instalments only have become payable, the Master should re- v. Thaltimer, port only the interest, or the payable instalments with the interest, as the amount due; stating that the remaining instalments or the principal are not due. Although the bond is forfeited, yet the court will not order more of the property to be sold, than is sufficient to discharge such amount, except where the property is not susceptible of a division without injury. The reasons of this are more fully stated in the note to the decree of sale, post. Tit. Sales by a Master, The rate of interest fixed in the instrument is to prevail until the security is changed by a confirmation of the report and decree. on file Ass. See 2 John. Mss. case, "Bond with interest at six per cent.; the time of payment June 23, was passed. The question was whether interest at seven per 1820. cent. should not be given from the forfeiture. 2 Dess. Rep. Miller v. Bur roughs. 170, was cited, and 2 Burrows, Bottomly v. Bumley. The Chancellor held, interest should continue at the rate contractcd for, until confirmation of the Master's report." See Fendall v. Nash, 19 Vesey, 197. Ibid. JUDGMENTS. AS to interest upon judgments, see ante. The judgment creditor should leave an affidavit with the Master of the true amount due him; for even if it is stated in his answer it may have been varied by subsequent credits. This affidavit is not proof of the judgment, but is the security the court requires that the sum ostensibly due upon it, is really so. If the judgment is set forth shortly in the bill, or stated in the answer and not replied to, that will be sufficient proof of it as between the parties; but if infants are concerned, it is advisable to have more formal proof from the records of the court. Mills v. Den- SECTION 2. INFANTS CONCERNED. WHERE the Mortgagor is dead, and his heirs or some of them are infants, the order of reference is this :— "It is ordered, that it be referred to one of the Masters of this court to take proof of the material facts stated in the plaintiff's bill of a complaint, and particularly, whether the bond and mortgage, in the plaintiff's bill mentioned, were duly executed, that the said Master compute and ascertain the amount due to the plaintiff for principal and interest thereon: And it is further ordered, that the said Master, under the circumstances of the case, in reference to the amount due to the plaintiff for principal and interest on the said bond and mortgage, and the situation, nature, and value of the mortgaged premises, ascertain whether a sale of the whole, or a part only, and what part of the said mortgaged premises, would be for the benefit of the said infant defendants; and that the said Master report on all the matters aforesaid, to this court, with all convenient speed." In the report of the case of Mills v. Dennis, contained in the Appendix to Blake's Chancery, part of the opinion of the chancellor is thus stated. "It appears to me therefore that the safe and proper course on bills for the sale of mortgaged estates, and when the defendants or some of them are infants, is to direct an enquiry whether a sale would be for the infant's benefit, and also to require the plaintiff on the reference to prove his demand, &c." Under this a difficulty occasionally arose, on what principles the enquiry as to the benefit to the infant, was to be conducted. And whether the court could interfere and refuse to the mortgagee a sale, in any case however strong, in which it would be more for the infant's benefit, that it should take place at a future period, than at the present. But the decision as stated in 3d Johnson's Rep. and the 370. form of all the orders shew, that the court intends merely, that the proof of the material matters in the causes and the grounds of its decree to sell the whole or a portion of the premises only, should formerly appear upon the records. The passage in Mr. Blake's book, which was taken from a manuscript report, is not in the case as published. And the Chancellor states, "that the proper inquiry in such cases will be, whether a sale of the whole, or only of a part, and what part of the premises, will be most beneficial." And again,— "that the Master must report to what extent, and of what part of the premises, (if any part short of the whole) a sale would be sufficient to raise the debt, and at the same time be most beneficial to the infant. The inability of the infant or his guardian to make an admission renders this proof and report advisable, instead of its being vaguely left to the Master's judgment at the sale, without the reasons of his judgment or at least without the formal proof upon which such reasons are founded, appearing on the proceedings. If the property is therefore proved to be of less value, than the amount reported due, I have always reported that a sale of the whole is necessary. The Chancellor refers to a late case in England of a decree for a sale, where an infant was concerned. Per Lord In England, the mortgagee has a right to take the land, Erskine. whatever may be its value by a strict foreclosure, and sales Perry v. under mortgages were so unknown there, that in a case as lato vegy, 201. Busher, 13 Goodier v. Ashton, 18 Vesey, 82. See 1 Madd. Rep. 287. Monday v. as 1811. Although the plaintiff, the mortgagee, consented to a sale, the court would not decree it. This principle has led to extreme indulgence in enlarging the period of redemption after a decree. In a more recent case however the precedent has been es tablished of allowing a sale, where an infant is concerned, upon 1 Ves. & Bea. the consent of the mortgagee expressly given, and ascertaining that it would be for the benefit of the infant, by his obtaining an overplus. 295. 2 Swanst. 256. 3 Vesey. Took v. 2 Br. C. C. Lord Eldon states in Postlethwaite v. Blythe, that the rules of the court with regard to mortgages had been strongly impressed on his mind by the conduct of two distinguished practitioners. Mr. Lloyd constantly protested that he never would, on the part of a mortgagee, consent to a sale; and the late Mr. Maddock, who was himself a mortgagee for £20,000 refused his concurrence in a sale to the great dissatisfaction of Lord Thurlow. They both maintained, that the mortgagee was entitled before he relinquished the estate, to have the money, not in the hands of the accountant-general, but in his own." And I also understand that the right to a strict foreclosure is in England reciprocal. The mortgagor has a right to insist upon the mortgagee's taking the pledge, as well as the Mortgagee to take it. This is stated to be so by counsel in 13 Vesey, 204, and the inquiry in Monday v. Monday, whether a sale would be for the infant's benefit, implies there was a right to refuse it. It In I conceive that the course of the court in Ireland is always to decree a sale, and that a strict foreclosure is unknown. is the right of the mortgagor as well as of the mortgagee. I conclude this from the statement of Lord Erskine in Perry v. Barker, derived from Lord Redesdale, and from a book of Irish practice, Howard's Equity Side, page 424. We have adopted the English rule so far as to allow a strict foreclosure. the case of Monday v. Monday, in which Lord Eldon permitted a sale upon the consent of the mortgagee, it was alleged, that there would be a large surplus for the infant; and he sent it to a Master to enquire if a sale would be for the infant's benefit. To determine this would be merely to ascertain, whether the property was worth more than the demand. If it was, the Master would of course report a sale beneficial; if not, he would find it most for the infant's benefit, that a foreclosure and not a sale should be decreed. In case of a foreclosure the mortgagee must either keep the pledge in full satisfaction, or must ascertain the value by a sale, and then if he sues upon the bond for the difference, the foreclosure is opened and he |