The referee in this case has committed an error which has become of such frequent occurrence that it may be useful to state the duties of a referee in the execution of an order of reference like this. The order directs the referee, (among other things) “ to take proof of the facts and circumstances set forth in the bill," and also “ to report the proofs and examinations had before him."
This provision should always be incorporated in the order of reference, wherein either infants or absentees are named as Defendants in the bill. It is an established rule that no decree can be taken against an infant by default; nor even upon the admissions of his solicitor or counsel. So scrupulously does the law guard the rights of this class of persons, that they cannot be bound by any adverse adjudications, except upon due proof exhibited to the court. Hence, the formal answer of the guardian ad litem of an infant, submits his rights to the determination of the court, and leaves the complainant to make out the facts of the court, and leaves the complainant to make out the facts of his case by proof.
The case of an “ absentee ” stands upon different ground. When process has been personally served upon an adult resident Defendant, it is fair to conclude that he has no defence to the bill, if he allows his default to be entered for want of an answer. Hence, by the practice of the court, an order “pro confesso ” is entered against such defaulting Defendant, by which all the allegations of the bill are taken “ as confessed " by him; so that it is not necessary to prove them in any of the subsequent proceedings in the cause.
This conclusion however would be very unreasonable when applied to the case of a non-resident Defendant upon whom no process has ever been served. For the purpose of making the proceedings in the cause regular, and of authorizing a decree against an absent Defendant who happens to be a necessary party to the suit, the statute has substituted the publication of a notice in such newspapers as may be designated by the court in the place of an actual service of the process. This notice however may never come to the knowledge of the party for whose benefit it
By applying these principles to the report under consideration, it will be readily seen, that it is entirely defective. One fact, the proof of which by the Plaintiff was indispensable, is the execution of the mortgage by the Defendant. That may be j>roved by a subscribing witness, when there is one, by evidence of the Defendants’ signature when there is not, or by the production of the certificate of a proper officer of the acknowledgment by the Defendant, or of the proof by a subscribing witness. The latter mode was adopted in this instance, (viz.) the production to the referee of the mortgage, with the certificate of the Defendants’ acknowledgment endorsed thereon. The statute declares such a certificate made by a proper officer, and in the