
    Abraham W. McGowan vs. David D. James.
    The chancery court has power under the statute (Hutch. Code, 769) to set aside a pro confesso, upon good cause shown and payment of costs, and should do so when a proper case occurs; and upon its refusal it will be ordered, on appeal from the decree of the chancellor, by this court.
    A bill was filed to foreclose a mortgage in the 'superior court of chancery, and on the 18th of May, 1847, process was served by leaving a copy at the residence of the defendant; on the 21st of June ensuing, the bill was taken for ■ confessed, submitted to the clerk to compute the amount due on the note and mortgage, the clerk’s report received, confirmed, and final decree of foreclosure rendered; on the 25th of August after, the defendant applied to have the pro confesso set aside, and his answer allowed, stating in his affidavit that he was in Texas when the process was served ; and his answer disclosed that his defence was the illegality of the transaction for which the note was given, being for the purchase of negroes introduced into this state as merchandise, in violation of law. The chancellor ordered the pro confesso and decree to be set aside on the-4th of September^ and the answer filed; afterwards-, upon rehearing, he -set aside the last order, reinstated the original decree, and ordered the answer to be taken from the files ; held, that this last order was erroneous; the first order should have been permitted to stand, and the defendant allowed to make his defence.
    And on a writ of error from the decree of June, 1847, the whole subsequent proceedings will be subject to review in this court; because that decree has its validity by its subsequent reinstatement after it had been once set aside.
    A decree to foreclose a mortgage signed on the same day the bill is taken for confessed, the case referred to a master, and the master’s report confirmed, if not erroneous, is, to say the least, a very hasty one.
    
      Whether a decree to foreclose a mortgage will be erroneous if the defendant has not been notified of the taking of the account upon the note and mortgage by the clerk ; and if the clerk has not assigned a day to the parties to appear and examine his report, but his report has been confirmed without either — Query.
    
    In error from the superior court of chancery; Hon. Stephen Cocke, chancellor.
    David D. James filed his bill on the 20th of June, 1846, against Abraham W. McGowan, to foreclose a mortgage given by McGowan on three slaves to secure payment of a due bill for $1000. Process issued on the 8th of March, 1847, and was returned “ duly executed, May 18, 1847, by leaving a copy hereof at the residence of defendant, A. W. McGowan, with Alexander McGowan, a free white person over the age of sixteen years, and member of his family; the said A. W. McGowan being absent from his home.” On the 21st of June a pro confesso was taken. On the same day a reference was made to the clerk to compute the amount due on the note and mortgage; he made his report the same day,'and on its coming in, a fin&I decree was rendered for $1089, on the same day.
    On the 25th of August, 1847, McGowan filed a petition to set aside the pro confesso, and for leave to file his answer. The petition states two grounds for the application:
    1. That defendant was absent from the state, in Texas, when the subpoena was served by leaving a copy at his residence, and did not return or know of the suit till after a decree was rendered.
    2. That he has a good defence to the suit. The application was accompanied with his answer, which he desired to file; the substance of which was, that the due bill was given for the sale of negroes, which were introduced and sold in this state to McGowan by James, contrary to the constitution, and that McGowan had given James a draft on Ferriday & Bathurst, which has never been accepted or paid, and ought to be returned.
    Notice for the trial of the petition was served on complainant’s solicitors for the 4th day of September, and on that day the chancellor set aside the decree, and gave leave to file an answer. The chancellor granted a rehearing of the petition on motion, notice of which was served on the solicitor of McGowan on the 7th of September. The case held under advisement by the chancellor until March 15,1848, when he set aside all the orders subsequent to the final decree, and ordered that decree to stand, and be executed. And from that last order an appeal was prayed and allowed on bond being given equal to the amount of the decree and costs, &c. This appeal was not prosecuted, but a writ of error was issued out. In the petition, for which the error is alleged to be in the decree of June, 1847, the writ of error bond recites the decree of June, 1847, as does also the writ of error itself.
    
      Sanders and Hag gin, for plaintiff in error.
    
      Montgomery and Boyd, for defendant in error.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed to foreclose a mortgage on certain slaves. The subpoena was served on the 18th of May, 1847, by leaving a copy at the residence of the defendant. On the 21st of June thereafter, the bill was taken for confessed, and set for hearing ex parte, and on the same day an interlocutory decree for an account was entered. The account was taken and returned, and there being no exceptions filed thereto was confirmed, and a final decree of foreclosure and of sale made on the same day.

On the 25th of August the defendant entered his appearance, and moved the court to set aside the pro confesso, and the decree made thereon, and to permit him to file an answer. The answer accompanied the application, and stated that the defendant was absent in Texas at the time the process was left at his house, and that he did not return, nor have any knowledge of the proceedings, until after the rendition of the decree. It also stated that the mortgage rvas executed in consideration of a purchase of slaves, introduced from abroad, and sold contrary to the provisions of the then law, and relied upon its invalidity as a defence. Notice of the motion was served upon the counsel of the complainant, and on the 4th of September, the order of pro confesso and the decree were set aside, and the answer filed. A rehearing was afterwards granted, the chancellor set aside this last order, directed the answer to be taken from the file, and reinstated the original decree. An appeal was prayed, but the bond not having been given, a writ of error was afterwards sued out, and the cause thence comes to this court.

The defence disclosed by the answer was valid, if the statements were true. The statute directs, that in default of an answer the bill may be taken pro confesso, and set for hearing at the same term; and such pro confesso, so taken, shall not be set aside, unless upon good cause shown, and payment of costs.” Hutch. Code, 767. This strongly implies that it shall be done, upon good cause shown, and we can scarcely conceive a stronger showing than was here made.

The decree, to say the least, was a very hasty one. In a month after the service of the process, all the intermediate steps had been taken, and the final decree rendered. There was no pause; the interlocutory order, the account and the final decree were all made in one day. The report was without notice, and entirely ex parte. The twenty-third rule of the court requires notice of the taking of an account, and directs that it be either by personal service or by advertisement; this was wholly disregarded.

The thirty-eighth rule requires a day to be assigned to the parties to appear and examine the report; this was likewise disregarded.

But it is insisted in argument, that the writ of error brings up nothing but the original decree, and not the subsequent proceedings. We take a different view of the record. When the answer was filed, it became a part of the record. The last order in the cause, setting aside the previous order, and reinstating the original decree, is also a part of the record. The validity of the original decree rests upon the order reinstating it, and this brings the whole proceedings under review. When the whole record is regarded, it is very manifest that the decree is against the justice of the case, unless we say that the law of the case is different from the justice of the case. The defence set up by the answer was valid. Were the decree to be now affirmed, it would be a virtual sacrifice of substance to form, when even the regular forms of the court were not pursued.

We think with the counsel of complainant, that the act of 1848, Hutch. Code, 787, has nothing to do with this case. That only provides for making the answer a part of the record, when the chancellor refuses to permit the answer tobe filed, and refuses to set aside the pro confesso. There was no reason for such statutory provision, when the chancellor permits the answer to be filed, and thus to become incorporated Avith the record.

On the whole circumstances, justice demands that the party be admitted to his defence.

Decree reversed and cause remanded.  