The rule does not authorize the entry of a decree for the balance of principal not due on the foreclosure of a mortgage for the failure to pay interest, unless the mortgage so provides. A State statute giving mortgagors a right of redemption within a certain time after a mortgage sale, will in all cases be followed by the Federal courts, since it establishes a rule of property. In the absence of such a statute there is no right of redemption after the sale under a decree of foreclosure has been confirmed.25 § 323. Decrees in the nature of decrees nisi.- Decrees in the nature of decrees nisi are decrees taking a bill against a defendant as confessed, and decrees under the statute affecting property within, and against a defendant without, the jurisdiction of the court. Decrees taking bills as confessed are described in chapter VII. The cases where a decree against a defendant not served with process can be entered under the act of March 3, 1875, have been already described.1 Any defendant or defendants to such a statutory decree "not actually personally notified" of the suit, in accordance with the provisions of the statute, may, at any time within one year after final decree, enter his appearance in said suit, and thereupon the court must make an order setting aside the decree therein, and permitting such defendant to plead on payment of such costs as the court shall deem just; and thereupon the suit is proceeded with to final judgment according to law.2 324. Time of entry of decree. A decree can regularly be entered only during a term of the court. The court has of a foreclosure suit upon a breach of the condition of the trust deed or mortgage. Central Tr. Co. v. Worcester C. Mfg. Co. (C. C. A.), 93 Fed. R. 712; Farmers' L. & Tr. Co. v. Chicago & N. P. R. Co., 61 Fed. R. 543; Mercantile Tr. Co. v. Chicago, P. & St. L. Ry. Co., 61 Fed. R. 372; Pennsylvania Co. for Ins. etc. v. Philadelphia & R. R. Co., 69 Fed. R. 482. It has been held that the acceptance by the mortgagee of interest paid by the receiver of the property appointed in his suit for foreclosure is not a waiver of his right to continue the suit when other instalments of interest remain due and unpaid. American L. & Tr. Co. v. Union Depot Co., 80 Fed. R. 36. 23 Ohio Cent. R. Co. v. Central Tr. Co., 133 U. S. 83. 24 Brine v. Insurance Co., 96 U. S. 627; Orvis v. Powell, 98 U. S. 176; Hammock v. Farmers' L. & Tr. Co., 105 U. S. 77; Mason v. N. W. Ins. Co., 106 U. S. 163; Conn. Mut. L. Ins. Co. v. Cushman, 108 U. S. 51. 25 Parker v. Dacres, 130 U. S. 43. § 323. Supra, § 97. 2 U. S. R. S., § 738; 18 St. at L. 472. § 324. 1 Griswold v. Hill, 1 Paine, 483. power to allow a decree to be entered even in vacation as of a previous term, nunc pro tunc.3 Such leave will always be granted when the delay was caused by the action of the court.3 § 325. Frame of decree.- Decrees originally always consisted of three, and sometimes of four, parts. These were: the date and title; the recitals; the declaratory part, if that were required; and the ordering part. A decree usually begins with a recital of the day of the month and year when it was pronounced, and of the title of the cause, in which the parties should have the same designations that were given them in the bill. Next always followed, formerly, a recital of the pleadings, evidence, and former proceedings in the cause. The equity rules, however, provide that "in drawing up decrees and orders, neither the bill nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin, in substance, as follows: "This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz.'"5 When a decree is entered by consent, the fact that consent was given should be stated. The proper place for such a statement is ordinarily in the recitals, unless consent be only given to certain directions, when the statement of the consent should immediately precede such directions. It has been said also that it should appear affirmatively upon the face of the decree, that the defendant was properly served with process. The declaratory part of a decree, which if desired at all should be next inserted, contains a declaration of matters of fact, or of the rights of one or more of the parties to the cause, or a statement of the reason for the decree or any part thereof. This statement of reasons is not usual, although its utility has been noticed, 2 Gray v. Brignardello, 1 Wall. 627; Griswold v. Hill, 1 Paine, 483. 3 Gray v. Brignardello, 1 Wall. 627. § 325. 1 Daniell's Ch. Pr., ch. xxv. 2 Whitney v. Belden, 4 Paige (N. Y.), 140; Barclay v. Brown, 7 Paige (N. Y.), 245. Daniell's Ch. Pr., ch. xxv. 4 Seton on Decrees (4th ed.), 9–19. 5 Rule 86. Seton on Decrees (4th ed.), 1535; Bartlett v. Wood, 9 W. R. 817. 7 Allen v. Blunt, 1 Blatchf. C. C. 480. 8 Ex parte Earl of Ilchester, 7 Ves. 348, 373; Seton on Decrees (4th ed.), 19. 9 Bax v. Whitbread, 16 Ves. 15, 24; and it is sometimes adopted.10 Instances of declarations of matters of fact are the existence and validity of a will or other instrument," and the validity of a patent.12 So, whenever there are interfering patents, and a suit is brought by any person interested in any one of them, or in the working of any one of them, to obtain relief against the interfering patentee, the court, on notice to adverse parties, and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in part, or inoperative, or invalid in any particular part of the United States, according to the interest of the parties in the patent or the invention patented; but no such judgment or adjudication can affect the right of any person, except the parties to the suit and those deriving title under them subsequent to the rendition of such decree. Where a party establishes his right to property, the direction to transfer it to him is often preceded by a declaration of his title. The court will not thus decide rights as between co-defendants unless a cross-bill has been filed for that purpose, or it be necessary in order to determine the rights of the plaintiff, or possibly when the evidence is clear and the case between them ripe for decision; 16 and language in a decree broad enough to determine such rights will usually be construed as merely determining rights as between the plaintiff and the defendants, if no controversy between the defendants appears upon the pleadings. The court will not make a declaration of mere future rights,18 nor as to the rights of parties upon a contingency that has not 13 15 Gordon v. Gordon, 3 Swanst. 400, 478. Recitals in a decree of foreclosure of previous proceedings in the suit are sufficient prima facie evidence of such proceedings. Koons v. Beyson (C. C. A.), 69 Fed. R. 297. 10 Gordon v. Gordon, 3 Swanst. 400, 478; Jenour v. Jenour, 10 Ves. 573; Atty. Gen. v. Clapham, 4 De G. M. & G. 591, 607; Austin v. Austin, 11 Jur. (N. S.) 536. 11 Seton on Decrees (4th ed.), 19, 20. 12 Union S. R. v. Mathiesson, 3 Cliff. 146. 13 U. S. R. S., § 4918. See Foster v. Lindsay, 3 Dill. 126; Pentlarge v. 14 21 22 happened,19 nor, it was formerly held, as to mere legal rights; 20 unless such a determination is indispensable to the declaration of the present equities of the parties. A declaration that a deed to property beyond the jurisdiction of the court is fraudulent and void is of no effect unless accompanied by a direction that a party to the suit execute a reconveyance or deliver up the deed for cancellation, and compliance is made with such direction. It seems that the court should not make a declaration of the rights of the parties in a decree taken pro confesso or upon a defendant's default at the hearing. The conclusion of a decree is its ordering or mandatory part, which contains the specific directions of the court upon the matter before it.23 As these directions vary according to the nature of the case before the court, it would be impossible to lay down any definite rule concerning them. Nothing is more elastic and less arbitrary than this part of a decree in equity. The directions to the different parties may be separate, reciprocal, direct, or inverted, as long as they are not inconsistent. If there be several plaintiffs suing jointly, the decree may be joint or several, in conformity with their respective rights, as finally determined; and if a number of defendants, a single direction may be given to all, or a separate direction, or even a separate decree against each.25 Certain general rules governing particular kinds of decrees may, however, be stated. If the decree be for the performance of any specific act except the payment of money, as, for example, for the execution of a conveyance of land or the delivering up of deeds or other documents, the decree must prescribe the time within which the act must be done.26 Decrees for an account should always specify the Langdale v. Briggs, 4 W. R. 703; 19 Dowling v. Dowling, L. R. 1 Ch. 612; Seton on Decrees (4th ed.), 20. 20 Birkenhead Docks v. Laird, 4 De G. M. & G. 732; Webb v. Byng, 8 De G. M. & G. 633; Seton on Decrees (4th ed.), 20. 21 Carpenter v. Strange, 141 U. S. 87, 106; supra, § 319. 22 Jennings v. Simpson, 1 Keen, 404. 23 Daniell's Ch. Pr., ch. xxv. 24 Lingan v. Henderson, 1 Bland (Md.), 236, 275; Hodges v. Mullikin, 1 Bland (Md.), 503, 507; Owings' Case, 1 Bland (Md.), 370, 404. 25 Lingan v. Henderson, 1 Bland (Md.), 236, 256; Hodges v. Mullikin, 1 Bland (Md.), 503, 507; Quarles V. Quarles, 2 Munford (Va.), 321; Elliott v. Pell, 1 Paige (N. Y.), 263. 26 Rule, 8. 32 31 time from which the account is to be taken.27 "Every decree for an account of the personal estate of a testator or intestate shall contain a direction to the master to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such personal estate are outstanding or undisposed of, unless the court shall otherwise direct." 28 The old form of a decree to set aside a forged instrument was that the document "be cut, damned, and canceled." 29 By statute, when a Federal court of equity awards an injunction against the infringement of a patent, it may assess the damages the complainant has sustained by the injnnction, as well as compel an account of the profits," and it has the power to award treble damages, but not to award treble profits. In suits in equity for the foreclosure of mortgages, a decree may be rendered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same as is provided in the eighth equity rule. Upon the foreclosure of a railroad mortgage in a Federal court it is customary to insert in the decree a direction that the purchaser pay all valid claims against the receiver and such indebtedness of the mortgagor as has a preference over the mortgage debt.34 It has been held that such claims cannot be enforced by the State courts against the purchaser," but that suits upon them must be prosecuted in the Federal court upon the common-law or equity side, as the nature of the case requires; and that, after their adjudication, the creditor must bring his judgment 27 Cummins v. Adams, 2 Irish Eq. 393. 28 Rule 73. 29 Bishop of Winchester v. Fournier, 2 Ves. Sen. 445; Fitton v. Earl of Macclesfield, 1 Vern. 287, 292; Seton on Decrees (4th ed.), 1346. 30 U. S. R. S., § 4921. 31 U. S. R. S., §§ 4921, 4917; Living ston v. Woodworth, 15 How. 546; Zive v. Peck, 13 Fed. R. 475; Lyon v. Donaldson, 34 Fed. R. 789; Welling v. La Bau, 35 Fed. R. 302; Guyon v. Serrell, 1 Blatchf. 244; Peek v. Frame, 9 Blatchf. 194; Saunders v. Logan, 2 Fish. 167; Schwanzel v. Holenshade, 3 Fish. 196; Brodie v. Ophir Silver Mining Co., 4 Fish. 37. 32 Covert v. Sargent, 42 Fed. R. 298; Campbell v. James, 5 Fed. R. 807. 33 Equity Rule 92; Northwestern M. L. 1. Co. v. Keith (C. C. A.), 77 Fed. R. 374; supra, § 323. 34 Jesup v. Wabash, St. L. & P. Ry. Co., 44 Fed. R. 663; Thompson v. Northern Pac. Ry. Co., 93 Fed. R. 384, 388. 35 Jesup v. Wabash, St. L. & P. Ry. Co., 44 Fed. R. 663. 36 Thompson v. Northern Pac. Ry. Co., 93 Fed. R. 384. |