#### *W. E. Haskell vs. William Waties.*

If a bill appear on its face to be prematurely filed, and advantage be taken of this by demurrer, the demurrer will be fatal. But where there is no demurrer, and at the hearing the bill appears to have been prematurely filed, the court is not bound to dismiss it, but may, if the plaintiff is then entitled to the relief he seeks, decree for him.

*Before*Harper, Gh. *at Orangeburg,*

*February,*1845.

*The Chancellor.*This was a bill to foreclose a mortgage. It is alleged by the answer, and so the fact appears to be, that at the time of the filing of the bill there was nothing due, either of principal or interest, on the bond, the payment of which the mortgage was intended to secure. It had become due, however, before the hearing, and the question was, whether the defendant was entitled to have the bill dismissed, on the score of its having *9been prematurely filed, or whether the complainant was entitled to a decree for foreclosure.

In the case of *Sarter vs. Gordon, 2*Hill Ch. 121, it is said— *“*If a bill appear on the face of it to be prematurely filed, and advantage be taken of this by demurrer, the demurrer will be fatal. If there be no demurrer, and the cause be brought to a hearing before the time fixed for the performance of the contract, there might be reason to contend that the bill should be dismissed; but if no advantage be taken by demurrer, and it be not brought to a hearing till the proper time for performance has elapsed, the Court would not do so nugatory a thing as to dismiss the bill, in order to compel the party to file another bill for the very same purpose. Equity can do full justice to the parties by preventing surprise, and imposing costs on the party by whose fault they were prematurely and unnecessarily incurred.”

In the present case, it did not appear on the face of the bill that it was prematurely filed. The fact that nothing was due at the time of filing, depended on a question of disputed payment. If the bill should be dismissed, of what advantage would this be to the defendant *?*If he is prepared to pay the money upon the dismissal, he will suffer no injury, for he will be protected from the payment of costs. If otherwise, and a new suit should be necessary, it would be contrary to the maxims of the Court to compel parties to incur the costs of two suits, when those of one would be sufficient. It may be thought that a defendant is entitled to a certain delay, which would be consequent on the commencement of a new suit. But this delay is no matter of right. It is upon a general presumption, that the party may need certain time to prepare for his defence. But consistently with this, the speediest administration of justice is desirable ; and, as suggested in *Sarter vs. Gordon,*if we can be sure that the party is not surprised or precluded from defence, any delay would be injustice to the opposite party. To defer justice is to deny justice. The Court can, and will, in all cases, guard against such surprise. In the present case, no delay was moved for, nor was there any suggestion that, by delay, any defence might be prepared.

The defendant appealed, and now moved this Court to reverse the decretal order and dismiss the bill, on the grounds :

1st. Because when the bill was filed, on the 23d December, 1844, nothing was due on the bond in question, all the interest due up to that time having been paid.

*102d. Because the amount which the commissioner reports due, was the interest for the year 1844, not due until January, 1845— which interest could not be claimed in a bill filed on the 23d day of December, 1844. At least, the defendant should have been allowed the usual forty days from January, 1845, to answer the same.

3d. Because the said order is, in other respects, irregular and contrary to law and equity.

Bellinger, for the appellant.

*Glover,*contra.

Curia, *per*Harper, Ch.

In this case the Court agrees with the conclusion of the Chancellor as to the matter of practice involved. As the time appointed for the sale of the mortgaged premises, however, has elapsed, in consequence of the appeal, it becomes necessary to extend the time for selling. It is therefore ordered, that unless the defendant shall pay the amount due by him before the tenth day of January next, the commissioner proceed to sell the mortgaged premises, on the terms and in the manner directed by the circuit decree. In all other respects the decree is affirmed.

Johnston, Ch. concurred.

Johnson, Ch. absent from indisposition.