
    Stump and Others against Beatty.
    Chancery.
    [Mr. M. C. Johnson for plaintiffs: no appearance for defendant.]
    From the General Court.
    
      April 13.
    A publication against non-residents, made after the passage of the act of 2 February 1837, which requires a warning order & traverse, instead of publication, is unavailing — tho’ the order was made before the act passed.
    A decree against an absent def’t for the specific execution of a contract, made (since the act of 1837,) without proof, was unauthorized.
   Chief Justice Robertson

delivered the opinion of the Court.

Beatty having filed, in the General Court, a bill in chancery against nonresidents, for the specific execution of an alleged contract for land in this State — an order of publication against the nonresidents, was made a few days prior to the 2nd of February, 1837 — the time when the act of assembly, substituting a warning order and a traverse on the order book, took effect; and nevertheless, the order of publication was, after the said 2nd of February, actually published for two months; and upon a proper certificate of that fact, the General Court, without any appearance, traverse, or proof, took the bill for confessed, and rendered a decree for a conveyance.

The act of 1837, supra, provides that, — after its date, — . “in a proceeding in chancery against absent and nonresident defendants and unknown heirs, no order of publication shall be made or published;” and it is evident, therefore, that the publication in this case, did not authorize the decree pro confesso; for, though, even without the unauthorized and ineffectual publication, the order requiring the appearance of the nonresidents, might have had the effect of “a warning order,” nevertheless, without some proof of the allegations of the bill, the General Court had no authority to decree a specific execution of the alleged contract.

Wherefore, the decree is reversed, and the cause remanded.  