Usually in an action for foreclosure or sale there is no dispute as to the validity of the mortgage or as to any other matter which will necessitate the delivery of pleadings, and when the parties have been served, and appearance has been entered or the time for appearance has expired, a judgment will be entered on praecipe or on motion with or without a reference as the case may be.

It is unnecessary here to discuss the general rules of pleading. If there are controverted questions arising between the parties, other than mere matters of accounting, the issues will have to be defined by pleadings or otherwise and the action will have to be tried according to the ordinary rules of practice. Judgment will then be entered according to the result of the trial. If the decision is in favour of the mortgagee, the action may then proceed according to the usual practice in mortgage actions as hereinafter outlined. Only some matters of pleading need be mentioned here which are of special interest in mortgage actions.

(s) Gee v. Liddell, [1913] 2 Ch. 62, at p. 73.

(t) Standard Realty Co. v. Nicholson, 1911, 24 O.L.R. 46, at p. 52.

(u) Faber v. Earl of Lathom, 1897, 77 L.T. 168. It was held in Manitoba that a surety for payment of a mortgage is not a proper party to a foreclosure suit and that no personal order can be made against him: Real Estate Loan Co. v. Molesworth, 1886, 3 M.R. 116.

(v) Teeter v. St. John, 1863, 10 Gr. 85.

It is provided in Ontario by rule 109, as follows:

109.- (1) The plaintiff shall state the nature of his claim and the relief sought in a pleading to be called the statement of claim, and may therein alter, modify, or extend his claim as endorsed upon the writ.

(2) When a defendant has not appeared and the statement of claim alters, modifies, or extends the relief claimed, the plaintiff shall not be entitled to judgment on default of defence- unless the statement of claim is served personally or in pursuance of an order for substitutional service.

The plaintiff will not be entitled to any relief in the action which he has not claimed in the writ of summons or in the statement of claim. Thus where a mortgagee by the writ of summons asked for foreclosure, and by his statement of claim asked for an account, payment of the amount found due and, in default of payment, foreclosure or sale and possession, it was held that he was not entitled to judgment for immediate possession, even though the defendant had not entered an appearance to the writ, and did not deliver a statement of defence or appear on the motion for judgment (w).

Under the first paragraph of rule 109 the plaintiff may alter, modify or extend his claim in the statement of claim, as, for instance, by adding a claim for possession to the claim for an injunction to restrain waste contained in the writ of summons (x), but, in accordance with the principle now expressly stated in the second paragraph of the rule, it has been held that if the plaintiff endorses the writ with a claim for an account, foreclosure or sale and the appointment of a receiver, and the defendant does not appear, the plaintiff does not become entitled to an immediate judgment for personal payment by claiming this additional relief in the statement of claim duly filed but not served on the defendant (y)-. It is further provided by rule 143 as follows:

(w) Faithfull v. Woodley, 1889, 43 Ch.D. 287. (x) Smythe v. Martin, 1898, 18 O.P.R. 227.

143. A defendant to an action or counter-claim shall raise all matters which show the action or counter-claim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or Statute of Frauds.

Questions such as the invalidity of the mortgage deed should be raised by the pleadings and adjudicated upon by the court on the hearing of the cause. Contentions of this kind cannot be raised in the master's office (z).

Under the English practice the mortgagor should plead in his statement of defence any special matter affecting the account between himself and the mortgagee and should raise the matter at the trial, otherwise such special circumstances cannot afterwards be raised on taking the account (a).

If a mortgagor relies upon the defence that the mortgagee's right of action has been barred by the Statute of Limitations, such defence must be expressly pleaded (b), but it is unnecessary to plead the Statuteof Limitations in order to prevent the recovery of more than six years' arrears of interest in taking the accounts in the master's office; the filing of a disputing notice is sufficient (c).

(y) Gee v. Bell, 1887, 35 Ch.D. 160.

(z) Bickford v. Grand Junction Railway Co., 1877, I Can. S.C.R. 696 at p. 725. See McDougall v. Lindsay Paper Mill Co., 1884, 10 O.P.R. 247; Wiley v. Ledyard, 1883, 10 O.P.R. 182; Rowland v. Burwell, 1888, 12 O.P.R. 607.

(a) Sanguinetti v. Stuckey's Banking Co., [1896] 1 Ch. 502. In Ontario, see rule 410, quoted in chapter 27, Accounting between Mortgagor and Mortgagee.

Where the plaintiff company took a mortgage from a trustee and registered it without notice of any equitable right of the cestui que trust, the court considered it doubtful whether it was necessary for the plaintiff to plead the provision of the Registry Act in order to take advantage of it (d).

The defendants in a mortgage action filed a counterclaim claiming damages by reason of false and depreciatory statements with regard to the value of the mortgaged premises; an order was made striking out the counter-claim on the ground of inexpediency and inconvenience in trying the two causes of action together (e).