, being the judgment. for interest This Court Doth Order and Adjudge that the plaintiff [name] Form of do recover against the defendant [name] £ total of the principal sum of £ thereon at £ day of , and of £ per centum per annum less tax, to the [the date of the judgment], and also so much of his costs of this action as would have been incurred if it had been brought for payment only, such costs to be taxed by the Taxing Master. This Court Doth Order and Adjudge that the following account be taken : 1. An account of what is due to the plaintiff for principal and interest under the defendant's covenant to pay contained in the indenture of mortgage, dated [or promissory note or as the case may be] in the pleadings mentioned. And it is ordered that the plaintiff [name] do recover against the defendant [name] the amount which shall be certified to be due to him on taking the said account, and also so much of his costs of this action as would have been incurred if it had been brought for payment only, such costs to be taxed by the Taxing Master. And it is Ordered that the following [further] accounts be taken : 2. An account of what is due to the plaintiff under and by virtue of his mortgage security dated in the pleadings mentioned, and for his costs of this action, to be taxed by the Taxing Master, and in taking such account what if anything the plaintiff shall have received from the defendant, under the aforesaid judgment, is to be deducted, and the balance due to the plaintiff is to be certified. The remaining portion of the judgment then provides for further accounts, and finally directs that in default of payment the defendant shall be foreclosed (i.e. precluded) from all "right, title, interest, and equity of redemption," in the premises (1). The practice with regard to foreclosure and redemption actions has been most materially altered by the Rules of December, 1885, Order LV., rr. 5a and 5в, under which relief can in the majority of cases be obtained by originating summons (as to which, see post, p. 786). These rules provide that any mortgagee or mortgagor whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage whether (1) See as to judgment in default of pleadings, Faithfull v. Woodley, 43 Ch. D. 287. Originating sum mons. legal or equitable, may take out as of course an originating summons returnable in the chambers of a Judge of the Chancery Division for such relief of the nature or kind following as may by the summons be specified and as the circumstances of the case may require (that is to say)-(1) sale; (2) foreclosure; (3) delivery of possession by the mortgagor; (4) redemption; (5) reconveyance; (6) delivery of possession by the mortgagee. 5 B. "The persons to be served with the summons under the last proceeding shall be such persons as under the existing practice of the Chancery Division would be the proper defendants to an action for the like relief as that specified by the summons." The modus operandi in this new procedure may be illustrated by a somewhat elaborate form of summons which is supposed to be taken out by an insurance company who are first mortgagees of freeholds. The circumstances of the case are rendered somewhat more complicated, and therefore it is to be hoped more instructive to the student if he will be at the pains to follow out and master the details, by the fact that the property had been ex hypothesi originally mortgaged in the somewhat unusual form of demise for a long term (ante, p. 99), and that the "equity of redemption " (ante, p. 98) had been subsequently made the subject of a settlement. It must, however, be borne in mind that where the plaintiff claims a personal judgment against the mortgagor, he ought not to proceed by summons, but should bring an action (1). The summons for relief by the mortgagee might be in the following form (2) :— Let the defendant R. M. the tenant for life under the will of (1) Brooking v. Skewis, 58 L. T. (N.S.) 73. See as to jurisdiction, Re Giles, 43 Ch. D. 391. (*) Marcy and Dodd on Originating Summons, p. 397. The reader's at tention may be particularly directed to the evidence contained in pages 398, et seq., in support of the summons given above, viz. an affidavit of the company's secretary, and it is , in the county of the late R. B. M., of in the county of , the first mortgagees (under R. S. C., Order LV., r. 5A) that an account may be taken of what is due to the plaintiffs for principal, interest, and costs on a mortgage dated the 10th day of July, 1845, and made between the said R. B. M. of the one part; R. H., R. B., and G. P. of the other part; and that the said mortgage may be enforced by foreclosure in the terms of the minutes annexed to this summons. The following is the order which the Court would be asked Order on to make on the above summons: In the High Court of Justice, Chancery Division. The A. Fire Office v. M. and Others. Let an account be taken of what is due to the plaintiffs under and by virtue of their mortgage security dated the 10th day of July, 1845, in the summons mentioned and for their costs of this action to be taxed by the Taxing Master; and let, upon the defendants R. M., M. T., H. T., R. M. L., and F. L., T. J. M. M., J. L., A. S. M., F. P., E. E., G. N. E. and W. E. E., or any of them, paying to the plaintiffs what shall be certified to be due to them under and by virtue of their said security within six calendar months from the date of the Chief Clerk's certificate at such time and place as shall be thereby appointed, the plaintiffs to be noted in passing that as the deed in this case is upwards of thirty years old it does not require to be proved strictly (post, p. 860), an affidavit of the solicitor of the company as to the summons. Order on summons. Account against mortgagee in posses sion. assign, surrender, or otherwise assure the mortgage premises during the residue of the term of 1200 years created by the said indenture, free and clear of and from all incumbrances done by the plaintiffs or any persons claiming by, from, or under them, or by those under whom they claim, and deliver up upon oath all deeds and writings in their custody or power relating to the said premises to the said defendants, or to such one or more of them as shall so redeem the plaintiffs, or as he or they shall direct, such assurance to be settled by the judge in case the parties differ about the same. The order then goes on to direct that in case the defendants, or any or either of them, should redeem the plaintiffs, the person or persons so redeeming should be at liberty to apply to the Court for any proper further accounts and directions, and proceeds as follows:-" But in default of the said defendants, or any or either of them so redeeming the plaintiffs by the time aforesaid, let the defendants from thenceforth stand absolutely debarred and foreclosed of and from all right, title, interest, and equity of redemption in and to the hereditaments and premises comprised in the plaintiffs' said mortgage security during the residue of the term created by the said indenture of the 10th day of July, 1845." The rule of the Court is, where there are several incumbrancers, that where the defendants do not appear, one period only for redemption is allowed. If any subsequent mortgagee appears and claims to have successive periods fixed, the Court will have to consider whether he is entitled to them (1). Let us now consider how the account is taken against a mortgagee in possession. It is a well-established rule that a mortgagee cannot charge 5 per cent. to be increased to six, if the money be not paid at the proper time. A clause is accordingly not uncommonly inserted, with a view to secure the punctual payment of interest, providing for payment at a higher rate of interest than that which is agreed upon, with a proviso reducing the interest to the stipulated amount (e.g. 6 per cent. reducible to 5 per cent.), in case payment be made either on the proper day, or within a short time, generally one month, thereafter (2). It was decided by the late Sir George Jessel that under such a proviso reducing the rate of interest on punctual payment, a mortgagee who is in possession, through the default of the (1) Platt v. Mendel, 27 Ch. D. 46: Tufnell v. Nichols, 56 L. T. (N.S.) 152, and see Smithett v. Hes keth, 44 Ch. D. 161. (2) Union Bank of London v. Ingram. 16 Ch. D. 53. mortgagor, may charge the higher rate of interest, although he Account receives the rent on or before the day fixed for payment of the against interest. In this case the practice as to taking an account in possesagainst a mortgagee in possession was stated as follows:- sion. "In taking the account you take all the mortgagee's receipts and place them on the one side of the account, that is to say, you take all his receipts, whether they arise from the rents, or whether they arise from accidental payments, so to speak, such as fines or heriots; whatever the mortgagee has received from the mortgaged property is charged against him. Then, on the other side of the account you give him credit for his principal and all his interest. The result is that if the rents are more than the interest he keeps the rents without paying interest on the excess; if less, the mortgagor does not pay interest on the unpaid balance of interest. It is an accident in whose favour the account so taken may happen to be, but this is the mode of taking the account. Therefore it is not true to say that the rents are appropriated for the interest, for all the rents and receipts go in reduction of the principal and interest" (1). mortgagee closure. A point which it is very important to bear in mind is that Judgment just as the conveyance in a mortgage is in form absolute but of forein substance only security, so the final judgment foreclosing or precluding the mortgagee from all right of redemption is also in its nature fictitious. The final judgment in a foreclosure action, to quote from a well-known case (2), is in form absolute, but though absolute in form it really is not so in substance and still remains subject to the discretion of the Court. The absolute foreclosure is in form that the mortgagor should not be allowed to redeem at all; but it is form only, just as the original (') Per Jessel, M.R., in Union Bank of London v. Ingram, 16 Ch. D. 53. (3) Campbell v. Holyland, 7 Ch. D. 171. A further point which was discussed in this case is worth noticing. The argument had been pressed, you must not interfere against purchasers. On this Sir George Jessel said: "There are purchasers and purchasers. If the purchaser buys a freehold estate in possession after the lapse of a considerable time from the order of foreclosure absolute, with no notice of any extraneous circumstances which would induce the Court to interfere, I, for one, should decline to interfere with such a title as that; but if the purchaser bought the estate within twenty-four hours after the fore closure absolute, and with notice of |