
    Lewis Sanders, Jr., Richard W. Samuel, and Robert Rabe, vs. Lydia Dowell.
    Where the addition of “junior” is affixed to the name of a party against whom process is issued, and the officer returns the process served upon the nomination of the party, omitting only the addition of “junior,” in the absence of any proof showing that the process was in fact served upon the wrong individual, the presumption is, that the officer did his duty, and executed the process upon the right person.
    The statutes passed by the legislature for the regulation of proceedings in chancery, are to be applied to such suits in the circuit courts ; final decrees, therefore, may be entered by the circuit courts, at the same term a bill is taken for confessed; such course being authorized by the statute, in regard to the superior court of chancery.
    Whether the rules of the chancery court, adopted by the chancellor, are applicable to equity causes in the circuit courts,— Qucere?
    
    There is no rule of the circuit court requiring a commissioner, to whom an account is referred to state and report the amount due the complainant in a bill to foreclose a mortgage, to give the defendant notice of the time and place of taking the account; yet, if no such notice be given, and the defendant object to a confirmation of the commissioner’s report, on that ground, and at the same time shows any good reason for a recommitment of the account, the objection should be sustained, and the recommitment made. But if the defendant permits the commissioner’s report to be confirmed by the court, without objections, he must be taken to have waived any he may have had to it.
    It is necessary that a sale of mortgaged premises, made by a commissioner under a decree of foreclosure, should be confirmed by the court.
    Error, from the chancery side of the circuit court of Adams county; Hon. Charles C. Cage, judge.
    Lydia Dowell filed a bill on the chancery side of the circuit court of Adams county, on the 2d of May, 1840, representing that on the 9th day of January, in the year 1888, Lewis Sanders, Jr., Richard W. Samuel, and Robert Rabe, stood jointly indebted to one Cornelius Haring, since deceased, in the sum of eight thousand dollars, evidenced by two bills of exchange, bearing date January 1, 1838, drawn by Samuel, payable to the order of Rabe, at the Planters Bank, in the paper of said bank, (meaning the bank-notes of said bank,) the one, fourteen months after date, and the other on the 1st of March, 1840, for four thousand dollars each, both directed to Sanders, Jr. and accepted by him, and indorsed by Rabe to said Haring, which bills are in the possession of complainant, and made exhibits to the bill. That Samuel, Sanders and Rabe, to secure the payment of the bills, then the property of Haring, on the said 9th day of January, 1838, mortgaged to the said Haring, lots No. 3 and 4, in Square C, of college lots, in the city of Natchez ; the mortgage to be void on the payment of the bills of exchange. The mortgage is made an exhibit to the bill. That on the 7th day of July, 1838, before the payment of the bills, and whilst the same and the mortgage were held by Haring, he, for the consideration of eight thousand dollars, assigned the mortgage and bills of exchange to complainant, by means of which she acquired all the rights of Haring in the mortgaged premises and bills, of which defendants had notice; that when said bills respectively became due, they were regularly presented for payment at the place therein specified, and payment being refused, were both protested for non-payment; and the estate in the mortgaged premises, by virtue of the assignment and non-payment, had become absolute; that Sanders, Samuel and Rabe, have the possession and enjoyment of said premises, and, although requested so to do, they had failed to pay said bills, or satisfy said mortgage. The bill makes Sanders, Samuel and Rabe'defendants, and prays a decree against them for the amount of the bills; and on failure thereof, that the equity of' redemption of the defendants, in the mortgaged premises, be foreclosed. The subpoena was returned, “ Executed on Robert Rabe, Richard M. Samuel, and Lewis Sanders.” The cause was continued regularly, until the 23d day of December, 1841,. when a pro confesso was taken against all of the defendants, and the case referred to Samuel Wood, commissioner, to com? pute and report amount due to complainant; on the same day the commissioner reported the amount due by defendants to be the sum of nine thousand seven hundred and eighty-seven dollars and fifty cents; and on the same day the court returned a decree against the defendants, confirming the report, and decreeing that the mortgaged premises be sold at public auction to the highest bidder, at the door of the court-house of the county of Adams, on a credit of six months after advertising the time and place of sale, according to law, and appointed Samuel B. Newman, sheriff of the county, commissioner, to carry the decree into effect. That Newman, on .the 7th March, 1842, reported that he had sold the premises, after advertising, &c. for thirty days, and that the complainant had become the purchaser, at the price of three hundred dollars. The record does not show whether this report was confirmed, or not,
    From which decree the defendants prosecute this writ of error. The errors assigned are, 1. The decree rendered in the circuit court, taking the bill of complaint for confessed, and referring to a commissioner’ to compute the amount due to complainant, is erroneous. It not appearing that the subpcnna, in chancery, had been served upon the defendant, Lewis Sanders, Junr. 2. The court erred in confirming the commissioner’s report on the same day of the appointment of the commissioner and making his report, and because said report is erroneous, as it finds an amount in dollars, instead of “ Planters Bank money,” or their bank-notes, the thing agreed to be paid in the bills of exchange specified. 3. The circuit court erred in pronouncing the final decree in the cause, because there is no proof in the cause of the assignment of said mortgage to Lydia Dowell, nor of the indorsements upon said bills, or their protest for non-payment and notice thereof, nor of the value of the notes of the Planters Bank. 4. The decree pronounced by the circuit court, directing a sale of the equity of redemption of the defendant, in and of the mortgaged premises, is erroneous, because no day was given to the defendants for the payment of the money due on said mortgage, and because the said Haring, nor his heirs or representatives, are made defendants to said suit.
    
      
      Sanders and Price, for plaintiffs in error.
    The first error is well taken; the return must show that the persons named in the subpoena were served with process; the name of Sanders, in the subpoena, is different from the one returned as served by the sheriff. If the return had shown the subpoena to have been served upon the defendant, Lewis Sanders, the law would have aided the return in the presumption favoring the act of the sheriff by his qualifying description of defendant.
    The second error we regard as manifest, upon both points made in it. We know of no rules, established by the circuit court, in regard to the time allowed to a commissioner to make a report, or the notice to be given to the opposite party; but all analogy would seem to require a day to be given, either of the time and place of taking the account, or to examine the report, after it is made. By the rules of our superior chancery court (Rule XXIII. § 2,) it is provided, “ When a matter is referred to a commissioner, to examine and report thereon, he shall assign a day and place therefor, and give reasonable notice to the parties, or the attorneys of the parties, by personal service, or by advertisement in the nearest newspaper,” &c Had the defendants been thus notified, they could have appeared before the commissioner, and shown that the Planters Bank paper was of less than half its nominal value. That it was depreciated is a matter of the history of the county, which the courts judicially take notice of; and the court should have decreed the payment of the specific paper, or its value in money at the time of the dishonor of the bill. Gordon v. Parker, 2 S. &. M. 495.
    The other errors are also properly taken, and the reasons assigned sufficiently establish them as such; that a day should be given for the payment of the mortgaged debt is so universally recognized by all equity courts, that no authority will be required or adduced.
    The whole property, being the same for which the bills and mortgage were executed, and upon which the plaintiffs in error had expended as much more, was sold for three hundred dollars, is of itself sufficient to taint the decree with suspicion. Wherefore we insist that the decree of the circuit court be reversed, and the cause be remanded for further proceedings, as may be equitable and just.
    
      J. T. McMurran, for defendant in error.
    1. The first error assigned, that the subpoena had not been served on Lewis Sanders, Jr. we conceive, is assigned by mistake, as the sheriff’s return shows a service on him. It is true the sheriff has neither added Jr. or Esq. to his name, but there is no pretence that the service was not on the defendant.
    2. The second error assigned is, that the commissioner, appointed to report the amount due on the mortgage, made his report, and the same was confirmed, and all done on the same day. It is the first time we have seen it assigned for error, that the court and its officers acted with too much speed; and we will touch it but gently. As to the payment or report being in Planters Bank paper — If this paper was below par, and it were competent to show it, it devolved on the defendants to show it; and there is no error, in this respect, apparent on the face of the decree.
    3. As to the third error assigned, it appears distinctly by the record, that the mortgagee Haring assigned the mortgage to the complainant, and indorsed the notes to her, as shown by the import of commissioner Wood, and the exhibit A to his report. Besides, if this did not appear of record it would be no error; proof in writing, or orally, before the commissioner, would be sufficient, and the same would not appear of record. Besides, the pro confesso shows or admits the fact.
    4. The fourth error assigned is, that no day of payment was given to the defendants by the decree, and that Haring’s heirs or representatives were not made parties. As to this latter branch of this assignment, Haring, if living, or his personal representatives or heirs, if he were dead, had no interest whatever in the subject-matter of the controversy, and could not properly have been made parlies; no decree could have been rendered for or against him or them.
    
      With regard to a day of payment, extended to the defendants, this was a matter resting entirely in the discretion of the court, and not to have given a day cannot be assigned for error. Courts of equity have adopted the proceeding under a mortgage, to save the estate from vesting absolutely in the mortgagee, at law, on the non-payment of the debt on the day limited. And the object of this principle, governing a court of equity, is fully complied with in the decree in this case. The property is decreed to be sold, but it is to be done after legal notice, a thirty days advertisement; and, until the sale-day, the mortgagors have to pay the amount of the decree.
    The decree is substantially the same with the form adopted in the court of chancery of New York, in such cases. 3 Hoffman’s Ch. Pr. App. 243. The only difference, on the face of the decree is, that the words, “ unless the mortgagor pay previous to the day of sale,” &c. are not inserted in the decree, in the present case. And the addition of these words amount really to nothing, for the defendants were entitled to pay the money at any time before the sale, without these words being inserted, as fully as they would be if these words were inserted. More than sixty days intervened between the date of the decree and the sale; and we conceive the court will not disturb the rights of the parties on such a ground, on a writ of error, instituted more than two years after the sale. But the form in 3 Hoffman’s Ch. Pr. 244, is precisely the same as in this case; no day given for payment, and no doubt the draftsman who prepared this decree, drew it from the precedent just cited.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed in the circuit court of Adams county, to obtain a decree for the foreclosure of a mortgage executed by the appellants. The process was returned executed upon the parties’ nomination, and is without objection, except that the return omits the addition of junior, appended in the process itself, as an affix to the name of Lewis Sanders. No appearance was entered by the defendants, and after two continúan-ces, the bill was taken for confessed, and the matter thereof decreed at the same term, after an account had been taken. by the clerk, without notice to the defendants. A sale of the mortgaged premises took place; the commissioner executed a deed, and returned it into court, but whether the sale was confirmed, nowhere appears. Various objections are taken to the -proceedings.

First, as to the sufficiency of the return upon the process. If the process were in fact served upon the wrong individual, some course should have been taken to make the fact apparent. The only objection to it, is the omission of the addition ujunior P The presumption upon the face of the return is, that the officer did his duty, and executed the process upon the right person; if this were not the fact, it should be denied in some tangible manner.

As to the entering of the decree at the same term at which .the bill was taken for confessed — this is authorized by statute, in regard to the superior court of chancery. How. & Hutch. 523. A statute also directs that the course of proceeding in equity cases, in the circuit courts, shall conform to the course in the superior court of chancery, in similar cases. How. & Hutch. 480. We do not think there was any error in this. We do not now decide, that the rules of the chancery court, adopted by the chancellor, are applicable to equity causes in the circuit courts; but that the statutes passed by the legislature for the regulation of proceedings in chancery, are to be applied to such suits in the circuit courts.

There is another objection, that no notice was given by the commissioner of the time and place of taking the account. If this objection had been made in the court below, it should have been sustained, if the party had at the same time disclosed any reason for a recommitment of the account. But no exception was taken in the court below upon this ground, and the report was confirmed, without objection. There is no rule of the circuit court requiring notice in such case. The taking of an account is but a mode adopted by the court, of ascertaining the amount due, to relieve the judge from making the calculations himself. It bears a strong resemblance to a writ of inquiry of damages, after judgment by default. Although the appellant might not have been bound to notice the proceedings before the commissioner in taking the account, yet he was bound to notice the action of the court in confirming it. He was constructively in court; then was the time for his objections ; and as he made none, he iritis t be taken to have waived any.

The last objection is, that there was no confirmation of the sale of the mortgaged premises. According to the case of Tooley v. Gridley, 3 S. & M. 493, this was necessary. For this reason the decree will be reversed, and the cause remanded, with leave to the party to file exceptions to the sale, when the court below will have right to confirm it or set it aside, as the facts and circumstances may warrant. This decision, however, is to affect nothing which preceded the interlocutory order directing the sale.

Decree reversed, and cause remanded.  