
    John A. Beville et al. v. Daniel McIntosh.
    1. Chancery pleading and practice : decree pro confesso must be TAKEN BEFORE CAUSE SET DOWN FOR hearing. A cause cannot be set down for hearing before a decree pro confesso is taken against a'defendant, who has failed to appear. Rev. Code, 547, art. 39.
    2. Same: bill to foreclose a mortgage: reference must be made to a master or the clerk to state an account. A final decree cannot be passed on a bill to foreclose a mortgage, without a reference to the clerk or a master, to compute and report the amount due. Rev. Code, 547, art. 48.
    Error to the Chancery Court of Noxubee county, Hon. John "Watts, chancellor, on exchange of circuits with Hon. W. H. Eoote, chancellor of sixth judicial district.
    Defendant in error filed his bill for the purpose of enforcing the vendor’s lien. Process was returned properly served. At the April term, 1867, the plaintiffs in error having failed to appear, the following decree was made: “ This cause coming on to be heard this day upon bill, exhibits and proofs, and it appearing that the defendants were duly served with notice and they having failed to plead, answer or.demur to the bill of complaint, the same is taken as confessed; and the court being satisfied that the amount of the purchase-money now due is a lien on said land in the bill mentioned (describing it). And it further appearing that there is now due of the unpaid purchase-money the sum of $3,595, which is a lien in equity upon said land: It is therefore ordered, adjudged, and decreed,” that unless defendants pay by a specified time the land be sold, &c. This was the only decree made in the cause.
    A writ of error -was sued out, and the errors assigned are stated in the opinion of the court.
    
      Becmehamyp <& Welsh, for plaintiffs in error,
    cited Rev. Code, 546, 547, art. 39, 48; 1 How. (Miss.) 333.
    
      
      Jarnagcm <& Hives, for defendant in error,
    cited Barbour’s Ch. Pr. 371; 9 Porter (Ala:), 94.
   Ellett, J.,

delivered tbe opinion of tbe court.

Tbe questions in this case are :

1. "Whether a cause can be set down for hearing before a pro eonfesso has been taken against the defendant, he having failed to appear.

2. "Whether a final decree can be passed on a bill to foreclose a mortgage, without a reference to the clerk, or a master, to compute and report the amount due.

"We think that both these questions are settled in the negative by articles 39 and 48 of the Chancery Court act, Rev. Code, 547, which articles are only in affirmance of the long established practice of chancery courts. These rules being now defined by statute, are uniform all over the State, and cannot be departed from or disregarded.

Eor these reasons the decree will be reversed, and the cause remanded.  