#### ADAM McARTHUR et als. v. COMMONWEALTH LAND AND TIMBER COMPANY et als.

(Filed 13 December, 1913.)

Mortgages — 'Foreclosure—Equity—Creditor’s Bill — Writ of Super-sedeas.

On appeal from the refusal of tbe Superior Court judge to presently render a decree of foreclosure of a mortgage on which he had entered judgment for the amount of the debt, the plaintiff moved in the Supreme Court for a writ in the nature of a supersedeas, restraining- the enforcement of a decree in another pending action, in the nature of a creditor’s bill, involving the property subject to the mortgage, in which a receiver had been appointed to take charge of the lands. Held, the rights of the petitioning plaintiff are fully protected in the proceedings sought to be restrained by him, and the motion is denied.

Appeal by plaintiff from Lyon, J., at October Term, 1913, of CUMBERLAND.

Shaw & MacLean for plaintiffs.

Winston & Biggs, Robinson & Lyon, and Gox & Gox for defendants.

Per Curiam.

Tbis was an action instituted in tbe Superior Court of Cumberland County to foreclose a.mortgage, given by J. Sprunt Newton and wife, on a tract of land in said county, to secure tbe sum of $25,000, and held by Adam McArthur, one of tbe petitioners. Tbat on verified complaint, duly signed, there was judgment for tbe debt, tbe court declining, for reasons appearing of record, to enter a present judgment of foreclosure. From tbis refusal to presently decree foreclosure, tbe plaintiffs appealed and moved in tbis Court for a writ in tbe nature of a writ of supersedeas, restraining tbe enforcement of a decree in another action pending in said county, in which a receiver has been appointed to take charge of tbe lands, have tbe timber thereon cut and disposed of for tbe benefit of tbe creditors, including tbe plaintiffs, and- tbe proceeds paid to said creditors, under tbe order and supervision of tbe court.

Tbe latter action was in tbe nature of a creditor’s bill against tbe owners of tbe property and others, seeking to enforce tbe *384collection of tbeir claims, and seems to have been instituted before any complaint was filed or other notice given in the present suit, as to the nature of or extent of plaintiff’s claim.

On perusal of the record and the facts appearing in the present petition, the Court is of the opinion that as the matter now appears .the petitioners have an ample opportunity to assert their claims by mating themselves parties to the creditor’s bill in which the receiver has been appointed, and that they should take this course 'if they should deem it necessary to properly protect their interests.

Even when allowable, a writ of this kind is only granted in case of necessity. The application of the writ is therefore denied.

Motion denied.