complainant can, if permitted, remove. With the exercise of that election, complainant will become the devisee of the land. Craig v. Leslie, supra.

I will award a further hearing at which defendant may apprise the court of the amount of cash or security which he may require to satisfy all possible needs of the estate for the payment of creditors and expenses of administration. When that is ascertained, an appropriate order will be made.

LAVENIA BOYER

V.

EDWARD T. BOYER et al.

[Heard March 28th, 1910. Determined April 19th, 1910.]

1. A court of chancery has jurisdictional power, even after enrollment, to open a regular decree obtained by default, to afford defendant an opportunity to make a defence on the merits, where such defendant has been deprived of the defence either by mistake or accident, or by the neglect of his counsel.

2. Where an application to open a final decree is made before the period for appeal has expired, the modern practice is to apply by petition and order to show cause, and not by bill of review; but, after the period for appeal has expired, or after an appeal has been taken and has been affirmed, the chancery court cannot entertain a petition to open the decree, which can be challenged only by a bill of review.

3. A bill of review filed after the expiration of the time to appeal will only be entertained in case of new or newly discovered matter.

4. A petition to vacate a default decree in equity should be accompanied by specific affidavits setting forth in detail all the evidence on which the petitioner relies. and, on the return of the order to show cause, counter affidavits may be read.

On petition for leave to file bill of review.

Mr. Powell K. Martin, for the petitioner.

It is well settled that the court of chancery has discretionary power, even after enrollment, to open a regular decree obtained by default, for the purpose of giving the defendant an opportunity to make a defence on the merits, where such defendant has been deprived of such defence, either by mistake or accident, or by the neglect of his counsel. This has been expressly determined by our court of errors and appeals in Day v. Allaire, 31 N. J. Eq. (4 Stew.) 303, 315. See, also, Cawley v. Leonard, 28 N. J. Eq. (1 Stew.) 467; Brikerhoff v. Franklin, 21 N. J. Eq. (6 C. E. Gr.) 334; Richardson v. Richardson, 67 N. J. Eq. (1 Robb.) 437.

Where the application to open a final decree is made before the period for appeal has expired, the modern practice in this court has been to proceed by petition and order to show cause, and not by bill of review. That procedure simplifies the practice and procures an early determination. In Kearns v. Kearns, 70 N. J. Eq. (4 Robb.) 483, 487, the opinion is expressed that the practice of proceeding in such cases by petition should be encouraged if not exclusively prescribed. That view is sanctioned in White v. Smith, 72 N. J. Eq. (2 Buch.) 697, 700, and in Kelsey v. Dilks, 72 N. J. Eq. (2 Buch.) 834.

After the period for appeal has expired, or after an appeal has been taken and the decree affirmed, the court of chancery cannot entertain a petition to open the decree. Such a decree can be challenged only by a bill of review. Cook v. Weigley, 69 N. J. Eq. (3 Robb.) 836; Sparks v. Fortesque, 73 N. J. Eq. (3 Buch.) 251. And a bill of review filed after the expiration of the period for appeal will only be entertained in case of new or newly discovered matter. Watkinson v. Watkinson, 68 N. J. Eq. (2 Robb.) 632.

In the present case a defendant, against whom a decree has been entered by reason of failure to answer, seeks leave to file a bill of review. The application is made by petition setting forth the defence which is claimed and the reasons why an answer was not filed. The petition has been promptly filed and is supported

by a general affidavit of verification only. In opposition to the prayer of the petition, several affidavits have been filed which raise substantial doubts in my mind whether the averments of the petition are true. In this condition of the record, I feel it my duty to seek further evidence before proceeding further. I think the prayer of the present petition should be denied; but without prejudice to the right of petitioner to file a petition to open the decree and to permit her to answer. That petition should be accompanied with specific affidavits setting forth in detail all evidence on which petitioner may reply. At the return of an order to show cause, counter affidavits may be read and an early final disposition of petitioner's claim may, in that manner, be procured.

THOMAS E. FRENCH et al., receivers of State Mutual Building and Loan Association,

V.

E. BAETINE JOHNSON et al.

[Heard March 10th, 1910. Determined May 10th, 1910.]

1. A borrowing member of a building and loan association who executes a mortgage and pledges his shares to the association as security for the money borrowed is not entitled to credit on his mortgage debt for the premiums paid by him. although no affirmative action had been taken by the association in the exercise of its option to declare the entire mortgage debt due by reason of a default of such member in the payment of interest on the mortgage pursuant to a stipulation therein in that behalf contained, prior to the suspension of business of such association and the appointment of a receiver.

2. Such borrowing member is not entitled to stand on the footing of a non-defaulting mortgagor who has lost his rights to the benefits of the consummation of the building association scheme solely by reason of the association's insolvency.

3. A delinquent borrower against whom a default has been declared, and one similarly delinquent against whom no default has been declared. occupy much the same position so far as their rights are concerned.

Mr. Thomas E. French and Mr. George J. Bergen, for the receivers.

Mr. Eli H. Chandler, for the exceptants.

LEAMING, V. C.

Complainants are receivers of an insolvent building and loan association. Defendant is a borrowing member who has executed a mortgage and pledged his shares to the association as security for the payment of the money so borrowed. The present suit is for the foreclosure of that mortgage. The association ceased business and went into voluntary liquidation in April, 1907, pursuant to the act of 1904. P. L. 1904 p. 44. It was subsequently determined that the association was at that time insolvent and receivers in insolvency were appointed in the place of the trustees in liquidation. The bond secured by the mortgage now in question contains a clause to the effect that if default should be made by mortgagor in the payment of interest, premiums or fines for thirty days after the same should become payable,

"the whole principal debt aforesaid should, at the option of the said The State Mutual Building and Loan Association of New Jersey, its successors or assigns, become due and payable immediately, and payment of said principal debt, and all interest thereon, might be enforced and recovered at once."

At the date of suspension of business by the association interest was in default on defendant's mortgage for a period in excess of the period above referred to; but it is now claimed by defendant that no affirmative action had been taken by the association whereby it exercised its option to declare the entire mortgage debt due by reason of the default. The question now presented is whether defendant is entitled to credit on his mortgage debt for the premiums which have been paid by him. In the case In re State Mutual Building and Loan Association, 74 N. J. Eq. (4 Buch.) 807), it was determined by the court of errors and appeals of this state that a mortgagor of that association was not en

titled to credit for premiums paid in a case in which the mortgage was due by its terms at the time of suspension of business of the association. That case was first heard before me in this court upon the theory that the association had not exercised its option to declare the principal of the mortgage due. It appears, however, that the petition filed in that case contained an averment to the contrary, and by a stipulation in the case the facts stated in the petition were admitted. For that reason it is now urged that the court of errors and appeals has expressed no opinion touching a case in which the option to declare the mortgage due had not been exercised by the association at the date of its suspension of business.

The opinion of the appellate court in the case referred to, defines with great clearness the theory upon which a non-defaulting mortgagor becomes entitled to credit, in the event of insolvency, for premiums theretofore paid by him. It is there pointed out that his premiums are paid in reliance upon the consummation of a plan whereby his shares shall mature, and at their maturity shall discharge his mortgage indebtedness. As insolvency of the association operates to defeat the consummation of the scheme, in the absence of any contract contemplating that contingency equitable considerations arise which entitle him to a return of such premiums as he may have paid. As to mortgages due and payable at the time business is suspended, the opinion referred to states: "As to mortgage debts, therefore, that were thus due by the default of the debtor and collectible by the association while it was a going concern, the appellants, as receivers, stand in precisely the same situation as the directors of the association stood when the debts fell due. As to such no equitable rule is to be applied, for the simple reason that a mere breach of a legal contract, nothing more appearing, gives rise to no equitable consideration of any sort."

With these accepted principles in view, the rights and liabilities. of defendant must be determined.

For over four years defendant had been behind in his payments to an amount which entitled the association to exercise its option to declare the mortgage due and payable. During all of that time the association was privileged to exercise that option or to refrain