set down again; but in Stevens v. Praed, it was held, that it might be obtained on motion also.

It may be noticed, in this place, that, in general, when a bill is ordered to be dismissed upon a contingent event, the established rule is that such orders are not conclusive, unless the words "without further order" are annexed to the order; and that, where such words are omitted, the defendant must apply for and obtain an absolute order of dismission.

Although the general rule of the Court is, to make a complete decree upon all the points connected with the case, it frequently happens, that the parties are so circumstanced, that a decision upon all the points connected with their interests cannot be pronounced till a future period; thus, for instance, the interest of a fund may belong to a person for life, and, after his death, the fund may be distributable amongst a particular class of individuals; now, although the persons who form that class, as well as the tenant for life, must be and in general are before the Court at the time when the decree is pronounced, the Court will not, at that time, take upon itself to declare their interest in the fund; because it is a rule, never to declare rights which are not immediately to be acted upon, lest events should occur, before the time of acting upon them, which may create an alteration in those rights. All that the Court, therefore, does under such circumstances, is to decree the interest of the fund to be paid to the person entitled to the dividends during his life, and to declare that, upon his death, the parties interested in the fund are to be at liberty to apply to the Court as they may be advised. The same sort of liberty is also given in any other case in which it may seem requisite; and it is to be observed, that the effect of is not to alter the final nature of the decree. A decree, with such a liberty reserved, is still a final decree, and, when signed and enrolled, may be pleaded in bar to another suit for the same matter; the effect of it is, however, to permit persons having an interest under it to apply to the Court touching such interest, in a summary way, either by petition or motion, without the necessity of again setting the case down.

It may be remarked, that applications, under such a reservation in a decree as that last mentioned, may be made either by motion The order can be obtained even after the defendant has moved to dismiss; Swanger v. Gardner, 3 De G. & Sm. 696.

1 Ubi supra.

or petition, except in cases where the object is to have money paid out of Court, in which case the application should be by petition.

It may be noticed in this place, that there are many cases of decrees which, although they are final in their nature, require the confirmation of a further order of the Court before they can be acted upon; of this nature are decrees in suits against infants, in which a day is given to the infant to show cause against it, after he attains twenty-one.1 Of the same description, also, are decrees pro confesso made against a party absconding to avoid the process of the Court, under the 1st Will. IV. c. 36.2 And in some cases also under the Orders of May, 1845.8

The most ordinary case in which a further order is necessary to

1 Ante, pp. 154, 155; Dow v. Jewell, 1 Foster, (N. H.) 470; Anderson v. Irvine, 11 B. Monroe, 341. If the infant shows no cause within the specified time the decree is made absolute against him. 1 Newl. Ch. Pr. 501; Gilb. For. Rom. 160; Harris v. Youman, 1 Hoff. Ch. 178; Brown v. Armistead, 6 Rand, 594; Jackson v. Turner, 5 Leigh, 119; Collard v. Groom, 2 J. J. Marsh. 562. See Wilkinson v. Oliver, 4 Hen. & Munf. 150; Braxton v. Lee, Ib. 376; Ewing v. Armstrong, 4 J. J. Marsh. 68; Funk v. M'Keoun, Ib. 168; Jameson v. Moseley, 4 Monroe, 417; Mills v. Dennis, 3 John. Ch. 367; Pope v. Lemaster, 5 Litt. 77; Beeler v. Bullitt, 4 Bibb, 11; Glaze v. Drayton, 1 Desaus. 109; Wilkinson v. Wilkinson, 1 Desaus. 201; Cole v. Miller, 32 Miss. (3 George) 89. Under Missouri practice, it is not error, that a decree against infants, gives no day for them to show cause after they become of age. Hendricks v. McLean, 18 Mis. (3 Barnett,) 32; Heath v. Ashley, 15 Missouri, 393. As to Texas, see Cannon v. Hemphill, 7 Texas, 184. Under the statute, in Alabama, fixing a time within which minors can impeach a decree rendered against them, it is no error that a time is not fixed in the decree for that purpose. Cato v. Easley, 2 Stew. 214. But aside from the statute, a decree against infants must reserve their right to show cause against it after they are of age, or it will be erroneous. Barnes, 5 Dana, 223; Lee v. Braxton, 5 Call, 459. But see Pickett v. Chilton, 5 Munf. 467. An infant plaintiff is as much bound by a decree as a person of full age. Gregory v. Molesworth, 3 Atk. 626; Williamson v. Johnson, 4 Monroe, 255; Jameson v. Moseley, Ib. 416; Jackson v. Turner, 5 Leigh, 119; Bank of U. States v. Ritchie, 8 Peters (U. S.) 128. A decree against a feme covert is good until it is reversed. Pillsbury v. Dugan, 9 Ohio, 117. In general, a cestui que trust is not bound by a decree rendered against his trustees, in a suit to which the cestui que trust was not a party. Collins v. Lofftus, 10 Leigh, 5. No decree can be made against one on whom process has not been served, unless he has entered an appearance. Ryan v. Blount, Dev. Eq. 382.

2

* Ante, p. 501.

See ante, p. 502; Order 90, May, 1845.

Harlan v.

complete the decree, is that of a decree for a foreclosure. Decrees of this nature, after directing an account to be taken of the principal and interest due to the plaintiff upon the mortgage, and the taxation of the costs, direct that, upon the defendant's paying to the plaintiff what shall be reported due to him for principal, interest, and costs, within six months after the chief clerk of the Judge to whose Court this cause is allowed, shall have made his certificate, at such time and place as shall be then appointed, the plaintiff shall reconvey the mortgaged premises to the defendant; but, in default of the defendant's paying to the plaintiff the principal money, interest, and costs, as aforesaid, by the time aforesaid, it is ordered and decreed that the said defendant do stand absolutely debarred and foreclosed of and from all equity of redemption of and in the said mortgaged premises.1

It is to be observed, that the six months mentioned in the Order are lunar and not calendar months,2 and that 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 reported due by 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 for confirming it, otherwise the decree of foreclosure will not be pleadable.3

The same practice is also to be observed in the case of decrees for the redemption of a mortgage, which usually directs the plaintiff to pay the balances reported due from him within six months after the report; in default of which, the plaintiff's bill against the defendant is from thenceforth to stand dismissed out of Court, with costs; under this decree, although it directs that in default

1 Seton on Decrees, 187. A decree in Chancery, that "defendant's equity of redemption be forever barred," will be considered as a formal decree of foreclosure. Hunt v. Lewin, 4 Stew. & Port. 138.

2 Seton on Decrees, 140.

Ibid. 144. See Whiting v. Bank of U. States, 13 Peters, 6. A release of the equity of redemption after decree is equivalent to a final order. Reynoldson v. Perkins, 2 Amb. 564.

* Seton on Decrees, 144. 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 Cushing, 223, Bigelow J. said: "After the condition of

of payment by the plaintiff, his bill is to stand dismissed with costs, yet it will not be so dismissed without a final order, which, however, may be obtained as of course. It may be observed in this place, that 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, a similar order was made, in the case of a bill filed on behalf of a purchaser, for the specific performance of an agreement for the sale of an estate, and it was directed that a time and place for the payment of the principal money, interest, and costs, should be appointed; and it was directed that, in default of payment, the bill was to be dismissed with costs. In such cases, as well as in those above mentioned, a final order is necessary.3

It may be remarked that, in cases of decrees of foreclosure, the Court will, upon application, enlarge the time for payment of the money, and it seems that formerly it would do this without imposing 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 principal, 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 due at the end of the time by the decree for redemption. See Mann v. Richardson, 21 Pick. 355; Stewart v. Clark, 11 Metcalf, 384; White v. Brown, 2 Cushing, 412, 417.

1 Seton on Decrees, 148. In this case the defendant will be entitled to taxed costs, though the cause was heard on bill and answer. A final dismissal of a bill to redeem is equivalent to a foreclosure; Cholmley v. Countess of Oxford, 2 Atk. 267; Bishop of Winchester v. Paine, 11 Ves. 199; but not a dismissal for want of prosecution; Hansard v. Hardy, 18 Ves. 460.

1 Bro. C. C. 397.

See Gray v. Brignardello, 1 Wallace U. S. 627.

Ismoord v. Claypool, 1 Cha. Rep. 262; even though it be an order absolute and enrolled; Ford v. Wastell, 2 Phil. 591.

interest, and costs: 1 now, however, the ordinary terms upon which the Court enlarges the time are the defendant's undertaking to pay the sum reported due for principal, interest, and costs, and the carrying on the account of subsequent interests and costs, including the costs of the application.2

On these terms the time will be enlarged for six months, and again for three months; and in Edwards v. Cunliffe, a fourth order was made for enlarging the time, though the third was directed to be peremptory.

It may be noticed, that where exceptions were taken to the report of principal and interest due on the mortgage, application should be made to have the time for repayment of the principal and interest enlarged until the exceptions shall have been disposed of.5 Where, however, this was omitted, and pending the exceptions the time for payment elapsed, the plaintiff was not allowed to take a peremptory order to foreclose, but the Court referred it back to compute subsequent interest, and to appoint a new time of payment. And so also, if a mortgagee receive rents after the report, and before the day appointed for foreclosure, the Court will not make the decree absolute without a further reference and account, as a new day will be fixed for payment.7

6

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 defendant's 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.

Although the Court will, upon a bill for a foreclosure, allow the

1 Bickham v. Cross, 2 Ves. 471; Bennet v. Edwards, 2 Vern. 392. Seton on Decrees, 142; Edwards v. Cunliffe, ibid. and 1 Mad. 287; Monkhouse v. The Corporation of Bedford, 17 Ves. 382; Combe v. Stewart, 13 Beav. 111; Holford v. Yate, 1 Kay & Johns. 677.

3 Ibid.

• Ubi supra.

Renvoize v. Cooper, 1 S. & S. 365.

• Ibid.

Allen v. Foster, 5 Beav. 592. See ante, 774, note; White v. Brown, 2 Cushing, 412, 417.

Monkhouse v. The Corporation of Bedford, ubi supra.