If the order appealed against is one which directs the transfer of stock, or payment of money out of Court, and it is wished to prevent the transfer or payment being made pending the appeal, immediate notice of the appeal should be given to the AccountantGeneral, who, upon such notice, will be justified in delaying to comply with the order till there has been time for the appellant to make a special application to the Court for a stay of proceedings.1

SECTION II.

Of Rehearings and Appeals in the Court of Chancery.

UNTIL recently, rehearings in the Court of Chancery were necessarily either before the same Judge or before the Lord Chancellor; but now, under the 14 & 15 Vict. c. 83, the Lords Justices of the Court of Appeal in Chancery and the Lord Chancellor constitute the Appellate Court in Chancery. It is not, however, necessary that the Lord Chancellor should sit together with the Lords Justices. "All the jurisdiction, powers and authorities of the Court of Appeal may be exercised either by one only of the Judges appointed under the Act and the Lord Chancellor, sitting together, or by both of the Judges so appointed, sitting apart from the Lord Chancellor, either in his absence or during the same time as he is sitting in such Court, and the Lord Chancellor may also, by himself, exercise all the jurisdiction he had before the Act."

Upon the application of the Lords Justices, the Lord Chancellor usually sits with them, and thereby constitutes a full Court.

By sect. 10, an appeal lies from the decision of the Court of Appeal to the House of Lords, in the same cases as formerly an appeal existed from the Lord Chancellor to the same tribunal.

When, therefore, a party is dissatisfied with a decree or order which has not been enrolled, the proper course, when it cannot be rectified in the manner already pointed out,2 is to apply by petition to the Lord Chancellor for a rehearing. This may be done 1 Ferguson v. Tadman, 1 R. & M. 331.

1

* Ante, p. 1025.

3

See Coleman v. Franklin, 26 Georgia, 368. Rehearings in Equity are allowed in the United States Courts only where some plain omission or mistake has

whether the decree or order was at the hearing of the cause, or upon a plea or demurrer. The same rule prevails when the order is made upon a petition, in which case the proper course is to apply by petition of rehearing in the same manner as upon a decretal order. Orders made upon motion are not precisely subjects for a rehearing, but a motion may be made to the Court of Appeal for the purpose of varying or discharging an order made upon motion.

By the 8th section, “The said Court of Appeal, and the Master of the Rolls, and the Vice-Chancellors, and each of the said jurisdictions, may sit with the assistance of any Judge of either of her Majesty's Courts of Common Law at Westminster, upon the request of the Lord Chancellor, if any such Common Law Judge shall find it convenient to attend upon such a request."1

The decision of the majority of the Judges, and the Judges of the Court of Appeal, shall be taken and deemed to be the decision of the said Court; and if the Judges of the Court be equally divided in opinion on any cause or matter brought before the Court by way of Appeal, the decree or order appealed from shall be taken and deemed to be affirmed by the Court of Appeal.

It appears that, when once a case has been decided by the Court of Appeal, however constituted, it will not be reheard before the same Court in another form; but, when no decision has been given, a rehearing before the full Court may be obtained.2

It is to be observed, however, that a decretal order made on motion, such as an order in a foreclosure suit under the statute, cannot be discharged on motion.3

been made, or where something material to the decree is brought to the notice of the Court which had been before overlooked. Jenkins v. Eldredge, 2 Story C. C. 299. "It has been the constant habit of the Supreme Court of the United States, to refuse rebearings of any cause, after it has once pronounced its own judgment, whatever might be the conflicts in the evidence, or the differences among the Judges themselves, as to the merits of the controversy." Per Story J., in Jenkins v. Eldredge, 3 Story C. C. 305. Where a rehearing is sought on the ground of newly discovered evidence, after an interlocutory decree, the Court will grant such a rehearing upon the filing of a supplemental bill, if the evidence is of such a nature as to entitle the party to relief upon a bill of review, or a supplemental bill in the nature of a bill of review, after a final decree, but not other wise. Baker v. Whiting, 1 Story C. C. 218; Jenkins v. Eldredge, 3 Story C. C. 307, 308.

1 Hay v. Willoughby, 9 Hare, 30.

Blann v. Bell, 2 De Gex, M. & G. 775.

Cadle v. Fowle, 1 Bro. C. C. 515.

A rehearing ought never to be applied for where the defect, in the decree or order, is one which can be remedied by any of the methods before pointed out, and it is to be observed, that, as it will not be permitted after enrollment, so it cannot be obtained till the decree or order has been passed and entered.1

A rehearing can only take place for the purpose of altering the decree upon grounds which existed at the time when the decree was pronounced. Where, therefore, the object is not to correct the decree, but to remedy a grievance consequent upon it, resulting from circumstances ex post facto, and not making part of the case, as it originally stood, a rehearing will not be permitted.2

By 15 & 16 Vict. c. 80, s. 60, the Lord Chancellor may, within six weeks after delivering up the great seal, give in to the Registrar a written judgment, signed by him, in any case which has been fully heard and is standing for judgment before him at the time of his resignation.

It has been the principle, that a cause heard before the Lord Chancellor, may be reheard before the Lord Chancellor or his successor in office; and, on the same principle, it would seem that it is within the discretion of the Court of Appeal, as now constituted, to hear a case a second time.

If it has been heard before any of the other Judges, it may be reheard before the Judge who heard it. If it is reheard either before the Lord Chancellor or the Lords Justices, it is generally termed an appeal, although, in fact, it is only a rehearing.

The Master of the Rolls cannot rehear a decree or order of the Lord Chancellor, unless specially authorized so to do, nor of a Vice-Chancellor; and it has been held that the Master of the Rolls has no authority to discharge or alter an order made by a Vice-Chancellor, even though made ex parte.1

1 Robinson v. Taylor, 1 Ves. jr. 44; Taylor v. Popham, 15 Ves. 72. Bowyer v. Bright, 13 Price, 316; Horne v. Barton, 39 Eng. Law & Eq. 458. The fraud of a mortgagee in preventing payment of a mortgage, and in suppressing competition at the foreclosure sale, is not a ground for a petition for a rehearing. Hurlburd v. Freelove, 8 Wis. 537.

Shirley v. Earl Ferrars, Law J. 1836, 200; see, also, George v. Watmouth, ubi supra.

The result of the statute, creating two additional Vice-Chancellors,1 is, that no rehearing can take place before a Vice-Chancellor of any decree or order made by the Lord Chancellor, unless under a special authority, nor can a Vice-Chancellor rehear any matter in which an order or decree has been made by any other ViceChancellor, or by the Master of the Rolls.

The Court seldom allows more than one rehearing, whether the second hearing was before the Judge who heard the cause origiinally, or before the Court of Appeal. It must not, however, be understood that the power of the Court to direct a rehearing before enrolment is limited to one only, the practice of doing so is only a general, not an inflexible rule; 2 and there are many cases in the books in which it has been departed from.3

But, although this has been the rule of the Court, with regard to two rehearings by the Lord Chancellor, and probably will continue so as to the Court of Appeal as now constituted, cases are not wanting in which the Court has allowed a cause heard and reheard by the Court below, to be reheard again before the Lord Chancellor.4

It may be stated, therefore, as the rule of the Court, that there is no positive restriction with regard to the number of rehearings; that the granting or refusing of a rehearing is in the discretion of the Court; but that, according to the general course of practice, one rehearing of a case, where the application has been sanctioned by the signature of two counsel, in the manner required by the rules of the Court, whether before the Judge who heard it or before the superior Judge of the Court, is merely a matter of course, the Court giving such credit to the opinion of the counsel who sign the petition that the cause ought to be reheard, as to order it

15 Vict. c. 5.

* Per Lord Eldon, Waldo v. Caley, 16 Ves. 214; see, also, For. Rom. 183. See Noel v. Robinson, 1 Vern. 90; Lady Falkland v. Lord Cheney, 5 Bro. P. C. 476; Parker v. Dee, 2 Ch. Ca. 200; Eyton v. Eyton, 4 Bro. P. C. 149; all which cases are cited in Mr. Hargrave's argument, in Fox v. Mackreth, 1 Harg. Jur. Arg. 351; see, also, 2 R. & M. 703, in which all the subsequent cases on the subject are collected and referred to; see, also, Fox v. Mackreth, 2 Cox, 159. * Pickering v. Lord Stamford, 2 Ves. jr. 272, 581; 3 Ves. jr. 332, 492; Brown v. Higgs, 8 Ves. 561.

5 Mills v. Banks, 3 P. Wms. 8. Where there had been one rehearing, a second rehearing was granted before another Chancellor, at the instance of the other party. Land v. Wickham, 1 Paige, 256.

to be set down; this, however, is not the case, after a cause has been already reheard before the appellate tribunal; in such a case, a second rehearing will not be permitted, unless leave should have been previously granted by the appellate tribunal, upon a special application for that purpose.2

And this rule applies, whether the decree upon the first rehearing had the effect of overruling, or of affirming the original decision, and is now so well recognized, that, in the recent case of Moss v. Baldoch, Lord Lyndhurst directed a petition of appeal to be taken off the file for irregularity, because it had been presented without special leave after one rehearing.

There can be no rehearing of a decree or order of the Court after it has been enrolled, but till enrolment, it is not, as we have seen, a record of the Court, and may be altered upon a rehearing;5 an enrolment, however, by one defendant, of a decree dismissing the plaintiff's bill, will prevent the cause being reheard at the instance of another defendant. Where there has been no enrolment, until recently there was no limitation as to the time within which a rehearing might be obtained, but now, by the 1st Order of the 7th of August, 1852, "No appeal from any decree, order, or dismission, or any rehearing of the case in which such decree, order, or dismission is founded, shall be allowed, unless the same is set down for hearing, and the requisite notice thereof duly served, within five years from the date of any such decree, order, or dismission respectively."7 Under the 6th of the same Orders, "The Lord Cunyngham v. Cunyngham, Amb. 89, 91; Attorney-General v. Brooke, 18 Ves. 325.

Byfield v. Provis, 3 M. & C. 437; Deerhurst v. The Duke of St. Albans, 2 R. & M. 702. See Wilcox v. Wilkinson, 1 Murph. 11; Overton v. Bigelow, 10 Yerger, 48; Haywood v. Marsh, 6 Yerger, 69.

31 Ph. 118.

Ante, p. 1029; Robinson v. Lewis, 2 Jones Eq. (N. C.) 25. There is no proceeding, under the practice in Massachusetts, such as the signing and enrolling of a decree in the English Court of Chancery; but what is equivalent thereto is the entering and recording of a decree. After a decree has been entered and become a matter of record, there can be no rehearing, on motion or petition for the purpose of correcting an alleged error which involves the merits of the case. Clapp v. Thaxter, 7 Gray, 384, 385; Thompson v. Goulding, 5 Allen, 81. Ante, p. 1029.

Gore v. Purdon, 1 Sch. & Lef. 234.

In Haywood v. Marsh, 6 Yerger, 69, it is held that a petition for a rehearing must, according to Chancery rules, be filed at the same term in which the decree is pronounced. Overton v. Bigelow, 10 Yerger, 48. So in Illinois. Delahay v.