Vernon,1 where a bill had been taken pro confesso, for want of an answer, and it was proved that the defendant was in an unsound state of mind, and had omitted, from that circumstance, to put in an answer, the House of Lords ordered the enrolment of the decree to be vacated. The same principle was also acted upon by Lord Hardwicke, in Kemp v. Squire,2 who said that the above cases proved it to be discretionary in the Court (he did not mean it arbitrarily so) to exercise the power if it sees fit. In Pickett v. Loggon, however, the Court refused to act upon this discretion, and it is to be observed, that in all those cases where it has been exercised, the merits of the cause had not been discussed before the decree was pronounced; and that, where such has been the case, the Court has refused to exercise the discretionary power before alluded to, unless there has been something in the nature of a surprise upon the party affected, as in the anonymous case which has been before referred to,5 or in Stevens v. Guppy, where the enrolment of a decree was set aside, because made a few days after a conversation had taken place between the solicitor for the plaintiff and the solicitor for the defendant, in which the former had informed the latter that a petition for a rehearing was preparing, to which the latter answered by desiring that no time might

509; Tripp v. Vincent, 8 Paige, 176; Robertson v. Miller, 2 Green Ch. 451, 454; Parker v. Grant, 1 John. Ch. 630. In Robertson v. Miller, 2 Green Ch. 453, 454, the Chancellor said: :-"There is a clear distinction between a decree nisi for default, according to the English practice, and a final decree after an order that the bill be taken pro confesso, and reference to a Master to take an account, according to our practice. Applications to open the one are treated with indulgence, attempts to set aside the other are more strictly scrutinized." "The whole current of authorities goes to show that there is a difference between decrees by default, orders that the bill be taken pro confesso, and actual decrees pro confesso. The last is considered, when compared with the others, as sacred, and to be disturbed only for weighty reasons." See Lansing v. McPherson, 3 John. Ch. 424; 1 Hoff. Ch. Pr. 551; Wooster v. Woodhull, 1 John. Ch. 541; Knight v. Young, 2 Ves. & B. 184.

1 Cited ibid. 206.

* 1 Ves. 205.

3 5 Ves. 702.

Charman v. Charman, 16 Ves. 115.

$ 1 Ves. 326.

1 Turn. & R. 178; see also Parker v. Dee, 2 Cha. Ca. 200; 1 Rep. temp. Finch, 123; 3 Swanst. 529; Anon. 1 Vern. 131; Enraght v. Fitzgerald, 1 Dr. & W. 72.

be lost in preparing it. It appears that the Vice-Chancellors have no jurisdiction to vacate an enrolment.2

It appears that in order to establish a case of surprise, there must be a certain degree of mala fides on the part of the party enrolling, which may have misled the party complaining; therefore it was held, by Lord Brougham, in Balguy v. Chorley, that the mere circumstance of its having been intimated, on the part of the defendant, to the plaintiff's solicitor, that it was the intention of the defendant to appeal forthwith, and of the plaintiff's solicitor saying in answer, that he was open to any fair offer of arrangement to prevent the necessity of an appeal, did not amount to such a surprise as will induce the Court to vacate the enrolment. This is in accordance with what was laid down by Lord Lyndhurst, in Barnes v. Wilson, where his Lordship held, that a party was not bound to communicate his intention to enroll a decree to his adversary, because the latter informs him of his intention to appeal against it.5

After a decree has been enrolled, it can only be altered on a bill of review, or by an appeal to the House of Lords; and this, though the decree has been enrolled by one of several defendants." In some cases, however, the Court, as we shall see in the next section, will permit clerical errors and miscastings to be rectified, upon motion, soon after enrolment.

1

Applications to open decrees address themselves to the sound discretion of the Court. They should be listened to generally with great caution, and should not be granted when the result would be injurious to the plaintiff who has conformed himself to the law of the Court. A final decree will not be opened, on the application of the defendant, five and a half years after the decree was made, and four and a half years after it came to the knowledge of the defendant, upon the ground of the pecuniary inability of the defendant to make the application at an earlier day. Robertson v. Miller, 2 Green Ch. 451. Where the facts are all before the Court, application to vacate a decree or set aside an order may be made upon motion merely. It is not necessary to file a petition. Collins v. Taylor, 3 Green Ch. 163.

2 Ford v. Wastell, 11 Jur. 537.

31 M. & K. 640.

41 R. & M. 486.

5 But where to prevent an appeal, a decree has been enrolled, in bad faith, the enrolment will be set aside. Wickenden v. Rayson, 35 Eng. Law and Eq.

252.

• Clapp v. Thaxter, 7 Gray, 386; Pfeltz v. Pfeltz, 1 Maryland Ch. Dec. 455. Gore v. Pardon, 1 Sch. & Lef. 234.

From the case of M'Dermott v. Kealey,' it appears that the enrolment of an order subsequent to a decree, reciting the decree, is not per se an enrolment of the decree, although such was not then the opinion of the Clerks of Records and Writs; but the enrolment of an order subsequent to a decree will prevent a rehearing of the decree, if the variations sought to be made in the decree are inconsistent with the enrolled order. The enrolment, however, of a subsequent order, though not an enrolment of the decree itself, may prevent a rehearing of the decree, when the latter cannot be altered so consistently with the enrolled order.2

SECTION V.

Of Rectifying Decrees.

"to

We have seen before, that as long as the decree remains in the shape of minutes, that is, till it has been passed and signed by the Registrar, it may be rectified upon application to the Court, by petition or motion, or by having it put into the cause paper, be spoken to," and that even important matters may be brought before the Court upon an application to vary minutes; but after a decree has been passed and entered, the Court will not entertain any application to vary it, unless in respect of matters which are quite of course. The proper method of having a decree rectified in other matters, is by applying to have the cause reheard.1

In cases, however, in which a clerical error has crept into the decree, or in which some ordinary direction has been omitted, the Court will entertain applications to rectify it, even though it has been passed and entered; and when the decree omitted a direction that was then of course, it was corrected by the insertion of

1 1 Ph. 267.

2 S. C. Ibid.

4

Ante, p. 1024.

* 2 Harr. 322; see post, rehearings and appeals. Gardner v. Dering, 2 Edw. Ch. 131; Bennett v. Winter, 2 John. Ch. 205; Clark v. Hall, 7 Paige, 382; Hendrick v. Robinson, 2 John. Ch. 484; 2 Smith Ch. Pr. (2d Am. ed.) 15, note (b) and cases cited.

See Lawrence v. Cornell, 4 John. Ch. 546; Thompson v. Goulding, 5 Allen, 82; Peaslee v. Barrey, 1 Chip. 331; Gibson v. Crehore, 5 Pick. 146.

that direction.1 So where a decree, in a creditor's suit, omitted the usual direction to take an account of the personal estate, it was ordered to be inserted.2

It is, nevertheless, to be observed, that it is a principle of the Court, that no alteration can be made in a decree on motion without a rehearing, except in a matter of clerical error or of form, or where the matter to be inserted is clearly consequential on the directions already given. Upon this ground, where the decree directed a commission to ascertain the boundaries of prebendal lands, a motion, that the decree might be extended to copyhold as well as to freehold lands, which was opposed, was refused. So where an ejectment was ordered to be brought, without restraining the defendant from setting up an outstanding term, the introduction of such a restraint was not permitted.5 In Colman v. Sarell, Lord Thurlow would not allow a decree to be varied, by giving costs to a defendant who was a mere trustee, and, as such, would have been entitled to them if they had been asked for at the hearing. And, in Brookfield v. Bradley, Sir John Leach declined to correct a decree, in which the error was apparent, because the alteration proposed would require new directions upon the corrected part.8

1 Wallis v. Thomas, 7 Ves. 292.

2 Pickard v. Mattheson, 7 Ves. 293; see also, Newhouse v. Mitford, 12 Ves. 456; Lane v. Hobbs, ib. 458; Skrymsher v. Northcote, 1 Swanst. 573, n.; Tomlins v. Palk, 1 Russ. 475; Hawker v. Buncombe, 2 Mad. 391. So, a decree will be amended, where, through inadvertence, costs have been given by it, to a party in the case, where he was not entitled to them. Murray v. Blatchford, 2 Wendell, 221. A decree may also be amended or corrected on motion or petition, not only as to mere clerical errors, but by the insertion of any provision or direction, which would have been inserted as a matter of course, if the same had been asked for at the hearing, as a necessary or proper clause to carry into effect the decision of the Court. Clark v. Hall, 7 Paige, 382. See Jenkins v. Eldredge, 1 Wood. & Minot, 63.

3 Although the Chancellor has no authority to set aside a decree final in its nature, in respect to the subject-matter of it, on account of any error in fact or law, yet he may suspend the execution of it for matter arising subsequently, which would render its execution oppressive. Spann v. Spann, 2 Hill Ch. 152. Willis v. Parkinson, 3 Swanst. 233.

' Brackenbury v. Brackenbury, 2 Jac. & W. 391.

• 2 Cox, 206.

7 2 S. & S. 64.

An order or decree, by consent, cannot be varied or modified in a material part, without the assent of both parties to the same. But the Court, upon the

It is to be noticed that, in the two last cases, the application was made by petition, but in Wallis v. Thomas, Pickard v. Mattheson, and others which have been referred to, the application was by motion upon notice.1 It seems, however, to be doubtful whether in all cases where such an alteration in a decree is required, the application should not be made by petition, for, by the 45th of the Orders of 1828, it is provided, "That clerical mistakes in decrees, or decretal orders, arising from any accidental slip or omission, may, at any time before enrolment, be corrected upon petition without the expense of a rehearing." 2

According to Lord Cottenham, in Whitehead v. North,3 this Order only enables the Court to supply something which would make an existing direction complete; but it does not contemplate the insertion of a new direction.

Proceedings under this Order must be by petition, but in some cases an omission has been supplied by a separate supplemental order, without altering or interlining the decree.1

It seems, however, that in cases of error in the direction of the decree, where the alteration cannot be made by supplemental order, the Court will direct the Registrar to attend with the decree and make the alteration in open Court, which the Judge will countersign with his initials.5

application of either party, may give such further directions as shall become necessary for the purpose of carrying such order or decree into effect according to its spirit and intent. Leitch v. Cumpston, 4 Paige, 476. See Jenkins v. Eldredge, 1 Wood. & Minot, 61.

1 See also Willis v. Parkinson, 3 Swanst. 233; Clark v. Hall, 7 Paige, 382; Murray v. Blatchford, 2 Wendell, 221; Rogers v. Rogers, 1 Paige, 188; Sheppard v. Starke, 3 Munf. 29; Gibson v. Crehore, 5 Pick. 146.

* See the 85th Equity Rule of the United States Courts, in note, ante, 1025; Thompson v. Goulding, 5 Allen, 82.

* Cr. & Ph. 78; and see Askew v. Peddie, 10 Law J. 45.

Lane v. Hobbs, 12 Ves. 458; see also Wallis v. Thomas, 7 Ves. 292; Lord Clarendon v. Barham, 12 Law J. (N. S.) Chan. 215; Needham v. Needham, 1 Hare, 633. Where the alteration sought is merely consequential upon the decree itself, or the addition of some direction which has been omitted, the omission will be supplied by a distinct order, without altering or interlining the decree itself. Clark v. Hall, 7 Paige, 382.

⚫ Tomlins v. Palk, 1 Russ. 476; see also Skrymsher v. Northcote, 1 Swanst. 573, n. As to the time, within which application should be made to rectify a decree, see Rogers v. Rogers, 1 Paige, 188, where leave to amend a decree was refused to a party, who had delayed a year and six months in applying to the Chancellor to correct a mistake in drawing up a decree. See, also, Bramblett v.