James Carman, the complainant, filed' his bill in the district court of Dane county, against Klliott Kurd, defendant, praying the court to decree foreclosure of a mortgage given by the defendant to said complainant and one Elvin Barker who had assigned all his interest therein to said complainant before the filing of said bill.

At the September term, 1844, of said court, defendant Kurd filed his demurrer to the complainant’s bill, assigning causes of demurrer, which was overruled by the court, on the 13th day of said term. On the 15th day of the term, complainant by his counsel, obtained a rule of court against said defendant, to answer by the morning after. On the same day of the term, said defendant within the rule, filed his answer to complainant’s bill, admitting the execution of the mortgage and assignment by-Barker ; a sufficient rise in the Wisconsin river to enable the defendant to float the lumber contracted to be paid to complainant to the place of delivery, at and before the time agreed on, as charged by complainant in his bill, but sets up payment in part, set-off, and an alteration of the written agreement by a parol contract between complainant and defendant, and denies any notice of the assignment by Barker to complainant. To this answer the complainant filed a general replication on the sixteenth day of the term, and on his motion the cause was referred to William N. Seymour, Esq., special master in *622chancery, to take testimony and report at the next term of the court.

On the 20th May, 1845, the special master filed his report of testimony taken.

At the June term, 1845, the defendant moved for leave to amend his answer, by setting up new matters of payment and by way of set-off, and the motion was overruled by the court. At the same term, a reference was made to the master to compute the amount of principal and interest due on the mortgage to said complainant; and upon the coming in of the report, and its being received and confirmed, a decree of foreclosure was entered containing an order of sale of the mortgaged premises to satisfy the mortgage debt and interest due, reported at $647.28.

The objections taken to the proceedings and decree of the district court are various, and we will examine each as it is presented in the course of the proceedings. It is insisted that the court erred in overruling the demurrer. Some of the causes of demurrer are, that Elvin Barker, who assigned his interest in the mortgage to complainant, is neither made complainant nor defendant in said bill; that the bill does not charge that defendant had notice of the assignment by Barker to complainant; that the charges in complainant’s bill, that there was a rise in the water sufficient to enable the defendant to float the lumber to Dekorra, the place of delivery ; and that the 2,200 feet of lumber indorsed as paid on the agreement were never actually paid by defendant, are facts about which complainant seeks a discovery of defendant, and should have been verified by the complainant’s affidavit; and that complainant does not charge that he has no legal remedy, and several other causes of the same force. It is scarcely necessary to say to a lawyer, that the demurrer could not be sustained on such grounds as these. The court did right in overruling the demurrer.

It is objected that the court erred in ruling the defendant to answer in so short a time after overruling the de*623murrer. It is the. practice in chancery, to take a short rule for an answer, after overruling a demurrer. Any inconvenience from this rule may be obviated on motion for an extension of the rule, which will always be granted for satisfactory reasons shown. No request of this kind was made, and we must presume that the defendant was satisfied with the rule as he answered on the same day of the rule when he was not required to answer until the next day.

And it is insisted that the court erred in refusing defendant leave to amend by filing an amended answer. If we turn to the order of proceedings in this cause, it will be seen that this motion for leave to file an amended an-. swer was made at the June term, 1845, after a general replication had been filed, and the cause referred to a special master to take testimony therein, at the September term, 1844, and after the coming in of the report of the master, of the testimony taken, on the 20th of May,' 1845.

To have permitted the amendment at the time the leave was asked would have been a departure from the rules of chancery practice, which are liberal enough, and nothing short of extraordinary circumstances in the defendant’s favor could justify the departure. These circumstances do not appear in the affidavits accompanying the motion for leave.

It is urged as error, that the court did not award a commission to take depositions on behalf of defendant, of witnesses residing in the pinery, upon the report of the master, Seymour.

If the defendant required a commission to take depositions, he should have made his application to the court in term, or to the judge in vacation, for the court of chancery is always open for such purposes, and his neglect to do so for some eight or nine months defeats his application at so late a period. The law favors the vigilant and not the tardy. It does not appear however, from the record, that a commission to take depositions was asked for by the defendant of the court.

*624The master reports that a commission was necessary— that subject was probably not referred to him.

An excess of some sixty-four cents of interest in the computation reported by the master, is complained of here. This is a small matter to urge in this court: de minimis non curat lex. The defendant should have excepted to the report, and had the matter re-referred for correct computation in the district court.

After having examined all the objections and errors urged in this court, we are of opinion that the decree of the district court herein be affirmed with costs, and seven per cent damages on the amount decreed to complainant.

Ordered that this affirmance be certified to said court, that the decree therein may be carried into effect.