TITLE 2 any act subsequent to the commencement of the suit, and may make such further order in the premises as shall be just and reasonable.45 Decree against mortgagors. When to ap pear, &c. Sales made not affected ing. to account to $136. If the bill shall have been filed to procure the foreclosure or satisfaction of a mortgage, the court, instead of proceeding to a sequestration in the manner herein before directed, may decree a sale of the mortgaged premises, or of such part thereof as may be necessary to discharge the mortgage, and the costs of suit, as in other cases.46 $137. In the case mentioned in the last preceding section, if the defendant, at any time before the sale of the mortgaged premises, shall appear and pay to the complainant such costs as the court shall award, the court shall stay the sale; and the same proceedings shall be thereafter had, as if the defendant had been served with process, and had regularly appeared.46 $138. No sale and conveyance regularly made under the preceding provisions, upon a bill filed for the foreclosure or satisfaction of a ant's appear mortgage, shall be affected or prejudiced by the appearance of the defendant within the one year, or the seven years herein before specifiComplainant ed, nor by any other proceeding; but such defendant, or his represendefendunt. tatives, may, at any time within seven years after the decree ordering such sale, file a bill against the complainant, or his representatives, to account for all monies received by them, by virtue of such decree, over and above the amount justly due on the mortgage, and costs of suit; and the court shall proceed upon such bill, according to the equity of the case.46 Staying trials ARTICLE FIFTH. Of the Granting of Injunctions to stay Proceedings at Law. SEC. 139. Trials in personal actions not to be stayed, until bond be given. 140. Pre-requisites for staying proceedings after verdict, in personal actions. 141. Ib. for staying proceedings after judgment. 142. When money deposited may be paid to plaintiff at law. 143. Proceedings if final decision be in his favor. 144. Pre-requisites for staying proceedings after verdict in ejectment, &c. 145. Damages of staying proceedings, how ascertained. 146. Bond may be received instead of deposit of monies. 147. In certain cases, deposits and bonds may be dispensed with. 148. Sufficiency of sureties in bonds, how ascertained. 149. Bonds herein required, where and when to be filed. 150. Bonds, when to be delivered to obligee for prosecution. $139. No injunction shall be issued to stay the trial of any perin personal sonal action at issue in a court of law, until the party applying there actions. for, shall execute a bond, with one or more sufficient sureties, to the plaintiff in such action at law, in such sum as the chancellor or master allowing the injunction shall direct, conditioned for the payment to the said plaintiff and his legal representatives, of all monies which may be recovered by such plaintiff or his representatives, or the collection of which may be stayed by such injunction, in such action at (45) 1 R. L. p. 489, § 9. (46) Ib. p. 493, § 21, 12 & 23. law, for debt or damages, and for costs therein; and also for the pay- ART. 5. ment of such costs as may be awarded to them in the court of chancery, in the suit in which such injunction shall issue. ings after $140. No injunction shall be issued to stay proceedings at law in Ib. proceedany personal action, after verdict, and before judgment thereupon, un- verdict. less a sum of money, equal to the amount for which the verdict was given, and the costs of suit, shall be first deposited with the court of chancery, by the party applying for such injunction, or a bond for the payment thereof, shall be given as herein after directed. $141. No injunction shall issue to stay proceedings at law, in Ib. after any personal action, after judgment, unless, 1. A sum of money equal to the full amount of such judgment, including costs, shall be first deposited by the party applying for such injunction, or a bond in lieu thereof, be given, as herein after directed: and, 2. Unless such party, in addition to such deposit, shall also execute a bond, with one or more sufficient sureties, to the plaintiff in the said judgment, in such sum as the chancellor or officer allowing the injunction shall direct, conditioned for the payment to the said plaintiff and his legal representatives, of all such damages and costs as may be awarded to them by the court, at the final hearing of the cause. judgment. sited may be $142. If after a verdict or judgment at law, any monies shall be Money depodeposited in the court of chancery, pursuant to either of the two last paid over. sections, the same may be paid, on the order of the court, to the plaintiff in such action at law, upon his executing a bond to the people of this state, in a penalty double the amount so deposited, with such sureties as the court shall approve, conditioned that such plaintiff will pay to the register or assistant register, as the case may be, the monies which he shall so receive and the interest thereon, or any part thereof, according to any order or decree of the court of chancery, that may be made in relation to the same. &c. S 143. Whenever the monies so deposited shall be paid to the Proceedings, plaintiff in the action at law, if the final decision of the cause in chancery be against the party obtaining the injunction, the chancellor may order any bond that may have been given by such plaintiff, to be cancelled, and shall continue the injunction to stay the collection of the judgment at law, or shall compel the plaintiff therein to cause such judgment to be satisfied and discharged of record. ceedings after ejectment. $144. No injunction shall issue to stay proceedings at law, in any Staying proaction, for the recovery of lands or of the possession thereof, after ver- verdict in dict, unless the party applying therefor, shall execute a bond, with one or more sureties, to the plaintiff in such action at law, in such sum as the chancellor or officer allowing the injunction shall direct, conditioned for the payment to the plaintiff in such action, and his legal TITLE 2 representatives, of all such damages and costs, as may be awarded to them, in case of a decision against the party obtaining such injunction. Damages, how ascer tained. Deposits, how dispensed with. $145. The damages to be paid upon the dissolution of such injunction, shall be ascertained by reference to a master, and shall include, not only the reasonable rents and profits of the land recovered by such verdict, but all waste committed thereon, after the granting of the injunction. $146. The chancellor shall have power to dispense with any deposit of monies required by either of the preceding sections, and in lieu thereof, to direct the execution of a bond, with sureties, conditioned to pay the amount so required to be deposited, whenever ordered by the court of chancery; or if a bond is already required, in addition to such deposit, then to direct the enlargement of the penalty and condition of such bond, as may be requisite. But whenever such deposit shall be dispensed with, the bond so substituted or enlarged, shall be executed by at least two sufficient sureties. Ib. and bonds $147. Whenever an injunction shall be applied for, to stay proceedings at law, in any action after judgment or verdict, on the ground that such judgment or verdict was obtained by actual fraud, the chancellor shall have power to dispense with the deposit of any monies, or the execution of any bond. Sureties' suf- $148. The sufficiency of the sureties in any bond, executed unficiency, how ascertained. der the provisions of this Article, shall be ascertained, either, Bonds to be filed, &c. When prosecuted. 1. By the certificate of any master in chancery, stating that he has inquired into the circumstances of such sureties, and is satisfied with their sufficiency: or, 2. By the affidavit of each surety, stating that he is a householder resident within this state, and that he is worth a sum equal to the amount in which the bond shall have been required, over and above all debts and demands against him. Every such certificate and affidavit shall be annexed to, or endors ed on the bond. $149. Whenever a bond shall be required to be executed, pursuant to the provisions of this Article, prior to the issuing of an injunction, the same with the certificate or affidavit above required, shall be filed with the register, assistant register or clerk, before the sealing and delivery of the injunction. $150. The chancellor shall direct the delivery of any bond executed under the provisions of this Article, to the person entitled to the benefit thereof, for prosecution, whenever the condition of such bond shall be broken, or the circumstances of the case shall require such delivery. Of the Powers and Proceedings of the Court, upon Bills for the SEC. 151. Upon such bills, court may decree sale of premises. 152. May decree payment of balance due after sale. 153. Suits at law prohibited, after filing bill. 154. Payment of balance by surety of mortgagee, may be decreed. 155. Proceedings at law to be stated in bill. 156. In certain case, execution at law must have been returned. 157. Sales of mortgaged premises, when and by whom to be made. 158. Deeds thereon; their effect. 159. Proceeds of sales, how applied. 160. Surplus, when to be invested. 161. Defendant may dismiss bill, on paying portions, &c. due. 162. Proceedings if payment made after decree for sale. 163. Proceedings if no payment made; when part of premises to be sold. 164. Proceedings to collect subsequent instalments. 165. In what cases, the whole of mortgaged premises to be sold. 166. Proceeds of sales, in such cases, how applied. promises may be $151. Whenever a bill shall be filed for the foreclosure or satisfac- Sale of tion of a mortgage, the court shall have power to decree a sale of the decreed. mortgaged premises, or such part thereof as may be sufficient to discharge the amount due on the mortgage, and the costs of suit.47 balance due may be de led. S 152. When a bill shall be filed for the satisfaction of a mortgage, Payment of the court shall not only have power, to decree and compel the delive- after sale, ry of the possession of the mortgaged premises to the purchaser there- creed. of, but on the coming in of the report of sale, the court shall also have power to decree and direct the payment, by the mortgagor, of any balance of the mortgage debt, that may remain unsatisfied after a sale of the premises, in the cases in which such balance is recoverable at law; and for that purpose, may issue the necessary executions, as in other How compelcases, against other property of the mortgagor, or against his person. $153. After such bill shall be filed, while the same is pending, Suite at law and after a decree rendered thereon, no proceedings whatever shall be had at law, for the recovery of the debt secured by the mortgage, or any part thereof; unless authorised by the court of chancery. $154. If the mortgage debt be secured by the obligation or other Payment by evidence of debt hereafter executed, of any other person besides the mortgagor. mortgagor, the complainant may make such person a party to the bill, and the court may decree payment of the balance of such debt remaining unsatisfied, after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce such decree as in other cases. prohibited. surety of proceedings $155. Upon filing a bill for the foreclosure or satisfaction of a Bill to state mortgage, the complainant shall state therein, whether any proceed- at law. ings have been had at law, for the recovery of the debt secured thereby, or any part thereof; and whether such debt, or any part thereof, has been collected. (47) 1 R. L. p. 490, § 11, and 493, § 21. TITLE 2. When execu returned. $ 156. If it appear that any judgment has been obtained in a suit at law, for the monies demanded by such bill, or any part thereof, no tion must be proceedings shall be had in such case, unless to an execution against the property of the defendant in such judgment, the sheriff shall have returned that the said execution is unsatisfied, in whole or in part, and that the defendant has no property whereof to satisfy such execution, except the mortgaged premises. Sales, by whom and when to be made. Deeds there on. $157. All sales of mortgaged premises, under the decree of the court of chancery, shall be made by a master in chancery, in the county where the premises or some part of them are situated, unless otherwise directed in the decree of sale.48 $158. Deeds shall thereupon be executed by such master, which shall vest in the purchaser the same estate, (and no other or greater,) that would have vested in the mortgagee, if the equity of redemption Their effect. had been foreclosed; and such deeds shall be as valid as if the same were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them, and against all parties to the suit in which the decree for such sale was made, and against their heirs respectively, and all claiming under such heirs.48 Proceeds of sales. Surplus, when to be invested. When bill to be dismissed, of sum due, &c. $159. The proceeds of every sale made under the decree of a court of chancery, shall be applied to the discharge of the debt adjudged by such court to be due, and of the costs awarded; and if there shall be any surplus it shall be brought into court for the use of the defendant, or of the person who may be entitled thereto, subject to the order of the court. 48 $160. If such surplus, or any part thereof, shall remain in the said court for the term of three months, without being applied for, the chancellor shall direct the same to be put out at interest, under the direction of the court, for the benefit of the defendant, his representatives or assigns, to be paid to them by the order of such court. 48 S 161. Whenever a bill shall be filed for the satisfaction or foreon payment closure of any mortgage, upon which there shall be due any interest, or any portion or instalment of the principal, and there shall be other portions or instalments to become due subsequently, the bill shall be dismissed, upon the defendant's bringing into court, at any time before the decree of sale, the principal and interest due, with costs.49 Proceedings to stay, in $162. If after a decree for sale entered against a defendant in certain case. such case, he shall bring into court the principal and interest due, with the costs, the proceedings in the suit shall be stayed; but the court shall enter a decree of foreclosure and sale, to be enforced by a further order of the court, upon a subsequent default in the payment of any portion or instalment of the principal, or of any interest thereafter to grow due.49 (48) 1 R. L. p. 490, § 11. (49) Ib. § 12. |