
    Peter A. Jay, Surviving Exr., etc., v. Elisha Ensign and M. B. Sherwood.
    
      Costs—Foreclosure suit—Neglect to give notice to subsequent purchaser made party, that no personal claim made—Such party not entitled to costs unless he simes that he is misled.
    
    M T. Reynolds for complainant.
    S. J. Cowen for defendant Sherwood.
   The bill in this case was filed to foreclose a mortgage given by the defendant Ensign; *and Sherwood was made a party defendant as having an interest in the mortgaged premises as a subsequent purchaser, or otherwise. The bill was taken as confessed against Ensign for not appearing, and against Sherwood for not answering after he had appeared by a solicitor. At the time of serving the subpoena upon Sherwood, a notice was served on him, stating the object of the suit, as authorized by the 133d Rule; but the notice omitted to state that the complainant made no personal claim against him. In consequence of this omission the defendant Sherwood appeared when the decree was moved for and claimed his costs against the complainant. The chancellor decided that to entitle a defendant to costs, under the rule, where he appears by a solicitor, but does not disclaim, he must satisfy the court that he has been misled as to the object of the suit and the relief sought against him in consequence of the neglect of the complainant to give the usual notice; and that his sole object in employing a solicitor was to protect himself or his property from an unjust claim which he supposed the complainant might have made against him by the bill.

Application for costs denied; and usual decree of foreclosure and sale directed, with a decree over against the defendant Ensign for the deficiency, if any.  