The Chancellor said, that the costs must be denied* emtil the plaintiff was first paid his debt and costs. In the case of Catlin v. Harned, the junior encumbrancer disclaimed, Here the defendant did not, and, of course, it must be presumed, that he would not have released to the plaintiff, had he been asked to do so. There is no good reason why he should have his costs, to be paid by the plaintiff, in case the fund falls short. In Kenebal v. Scrafton, the first mortgagee, who filed his bill, and foreclosed, had his costs, though the fund proved insufficient to pay all the mortgagees.
Motion denied.