Conlin v. Carter

<p>1. Chancert practice—reference to master. Where an account is to be stated, the proper practice is to refer the cause to a master to state the same, so that the parties may be heard before final decree, upon exceptions. But where the parties have themselves adjusted the account., in the absence of proof of mistake or fraud there is no error in dismissing a bill seeking to open the settlement, without any reference to the master to state the account.</p> <p>2. Settlement—opening in equity. Where parties in 1872 adjusted their accounts, and the debtor gave his notes and mortgage to secure the balance found to be due from him, and afterwards, in 1875, when he wanted an extension of the time of payment, the matter was again passed upon, and the first securities canceled and new notes and a new mortgage given, it was held that these two settlements could not be disturbed without clear proof of fraud or mistake.</p> <p>3. Pleading and evidence—enjoining sale for came not named in bill. A sale under a power in a mortgage will not be enjoined for defects in the notice of sale, where such defects are not set up and relied on in the bill. It is not enough to give a copy of the notice alleged to have been given, where it is not charged that it was the only notice given.</p> <p>4. Same—sufficiency of bill to enjoin. If a complainant seeks to enjoin a sale entirely under a power in a mortgage, he can not object that the court should have confirmed the sale for the amount of the note then due. If the mortgagor wishes to present the question whether a sale can be made for the whole amount secured, he should do so in his pleadings, and not seek to enjoin the sale entirely.</p>