Anonymous , 3 How. Pr. 158 ( 1847 )

Gridley, Justice

The 91st rule contemplates that motions of this description are to be made at the hearing of the cause, and therefore it is assumed that the court will be informed by the affidavit produced on the motion for the decretal order to sell, what provision should be embraced in the order of reference. In point of fact, however, the motion for a reference to compute, must always precede the hearing, inasmuch as the report of the amount due, &c., constitutes the evidence upon which the court grants the order of sale. This renders it necessary that the Plaintiff should either move for the order of reference and the appointment of a -referee, upon the usual affidavit of regularity prepared in advance for this purpose; or, that he should show to the court, in addition to the fact that the bill has been taken as confessed, the farther fact, whether the moneys secured by mortgage have all become due and payable or not, and also whether any of the Defendants are absentees or infants. ■In this case there is nothing shown by which the court can determine whether the order of reference should contain a direction to the referee to examine and report whether the premises can be sold in parcels, or whether it should contain a further direction to take proof of the facts and circumstances stated in the Plaintiff’s bill, and to examine him on oath as to any payments that may have been made upon the mortgage.

The affidavit must be amended in this particular.