BURCH v, SCOTT. 127

nal case, it appears, that there had been a return against Scott, the
defendant, attached for not appearing; in consequence of which,
on the 30th of March, 1824, the usual order nisi was passed,
requiring him to appear and answer by the fourth day of the next
July term, which commenced on the thirteenth, and closed on the
twenty-fourth day of the same month. Therefore, at any time after
the 17th day of July, 1824, the parties might have obtained the
decree, which was signed on the 4th of August, 1825.

That they did not obtain it sooner can only be imputed to their
own misunderstanding, negligence, or indulgence; because, the
court, on application, would have inspected the proceedings, and
have done on the next day, after that day, precisely that which it
did, when called upon one year after. The plaintiffs in that case,
then, owning to their own negligence or indulgence, stood in no
better situation at the July term, 1825, than they did at the July

of an answer. The act of 1799, appears to have provided a remedy for this incon-
venience,—the 9th section, relating to defendants appearing agreeably to an order,
limiting a day for such appearance, which is done by the order of publication. An
appearance was entered for the defendant at July term, but no answer has been put
in. It is urged by the counsel for the defendant, that the bill ought not to be taken
pro confesso, but that a commission should be issued, under which payments of a part
of the mortgage debt might be proved. But it was in the power of the defendant to
put in his answer alleging such payments, on which an opportunity would, of course,
have been given for the proof of them by commission, or before the auditor. There
is nothing to shew, that it is essential to the justice of the case, that a commission
should be issued, or even that it should be put before the auditor, the claim being
prima fade established by the mortgage, and the affidavit of the complainant.* But
in order that injustice may not be done to the defendant, inasmuch as the time
usually limited for bringing in the money due in such case will go beyond the sitting
of December term, the decree is made not to be absolute until the 10th day of that
term, during which, on sufficient cause being shewn, such alteration may be made as
shall then appear necessary. Decreed, that the property in the proceedings men-
tioned be sold, &c.

HEPBURN v. MOLLINSON.—The defendants, having been summoned, had failed to
appear, upon which the plaintiff obtained an interlocutory decree, in the usual form,
under the act of 1820, on the 14th of July 1821. After which, on motion by the
defendants, Caleb D. Goodwin and others, to appear and to have the interlocutory
decree rescinded—

18th July, 1821,—-KILTY, Chancellor,—Ordered, That the decree be rescinded,
together with the order for the commission. This order is made under the general
power of the court, being the same term; and not on the third section of the act of
1820, ch. 161, which may apply where the term is past. An answer is not therefore
required with the appearance, but the suit will stand as if an appearance had been
entered in the usual way.

* It appears that the plaintiff's affidavit of the sum due, in the usual form, made before
a justice of the peace, was endorsed on the mortgage.