Knapp v. Burnham , 4 Sarat. Ch. Sent. 65 ( 1844 )

Decided that in a suit to foreclose a mortgage payable by in-stalments the defendant cannot set off a demand which became due to him from the complainant subsequent to the filing of the bill; even against an instalment upon the mortgage which became payable after the right cf set off accrued. And that claims thus subsequently acquired are not proper subjects of consideration before the master upon the usual reference to ascertain the amount which has become due, and remains unpaid upon instalments which were not payable at the time ■of the original decree.

That where a second instalment becomes due upon a mortgage, subsequent to the decree, the complainant cannot go before a master and .obtain an ex parte report 5f the amount .due upon such instalment, without notice to the defendant. And that if the defendant has had no opportunity, previously, to object to complainant’s proceedings for the want of such notice, he may urge such irregularity in opposition to eom-plainant’s petition for an order of sale.

Notics to do. jendant; when necessary.

nI , ~ I hat a defendant who has appeared in a cause is entitled to notice of every proceeding therein which may effect his interest injuriously; except in those cases where, by the rules and practice of the court, he is bound to which the proceedings and to protect his rights without such notice. '

Order appealed from reversed and petition of both parties dismissed. But without prejudice to defendant’s right to file a supplemental bill and to apply thereon for an order to stay complainant’s proceedings under the decree; or to complainant’s right to apply for a new .order of sale. No costs to either party.