Chancellor, either sitting alone or with the Lords Justices, or either of them, shall be at liberty, when it shall appear to him, under the peculiar circumstances of the case, to be just and expedient, to enlarge the periods for a rehearing on an appeal, or for an enrolment."1

A rehearing may be obtained after the decree has been carried into execution; 2 and we have seen that, after the trial of an issue, the Court has permitted a petition for a rehearing of the order directing an issue, to come on for hearing, at the same time as a motion for a new trial of the issue; and after the trial of an issue, the Court has permitted a rehearing of the original decree directing the issue. So also, where the Court, by decree, directed the bill to be retained, with liberty to the plaintiff to bring an action, which he did, and failed, the Court permitted the cause to be reheard; although it was objected, that the plaintiff, having acted under the decree himself, by bringing the action, could not be heard to dispute the propriety of it.1

A petition for a rehearing is intituled in the cause, and if the cause has been heard before the Master of the Rolls, and it is wished to have it heard again before him, it must be addressed to the Master of the Rolls. If the cause was heard by a Vice-Chancellor, and it is intended to have it reheard by the same Judge, the petition must be addressed to the Lord Chancellor, praying that it may be reheard by such a Vice-Chancellor. If it has been heard before either the Master of the Rolls or a Vice-Chancellor, and the object is to appeal from his decision to that of the Court of Appeal, it must be addressed to the Lord Chancellor.

McConnel, 4 Scam. 156. In Vermont an application for rehearing must be made, and notice served upon the adverse party, within twenty days from the rising of the Court which pronounced the decree. French v. Chittenden, 10 Vermont, 127. See Jenkins v. Wild, 14 Wendell, 539; Tyler v. Simmons, 6 Paige, 127; Farley v. Farley, 7 Paige, 40; Barclay v. Bowen. ib. 245; North Amer. Coal Co. r. Dyett, 4 Paige, 273; Eldridge v. Howell, ib. 457; Strike v. M'Donald, 2 Harr. & Gill, 191; Townsend v. Townsend, 2 Paige, 413; Owings v. Owings, 3 Gill & John. 1; Smith v. Smith, 1 Paige, 301; Fulton Bank v. New York and Sharon Canal Co., 4 Paige, 127; Boyd v. Vanderkemp, 1 Barb. Ch. 273.

1 As to the time for enrolments, see ante, p. 1029, and see Townley v. Bedwell, 15 Beav. 79.

Rehearings in Equity after a decree are not a matter of right, but rest in the sound discretion of the Court. Daniel v. Mitchell, 1 Story C. C. 198; Dexter

v. Arnold, 5 Mason, 303.

White v. Lisle, 3 Swanst. 351; ante, p. 1114.

4 Brophy v. Holme, 2 Moll. 1.

One petition cannot seek the rehearing of orders made in different suits, though the parties in both suits are the same. Thus, where two bills were filed by the same plaintiff, against the same defendant, and the defendant put in a plea to one and a demurrer to the other, which both came on for argument on the same day, and two separate orders were made, allowing them with costs; whereupon the plaintiff presented a petition of appeal, complaining of both the orders;1 Lord Cottenham considered it a valid objection to the petition, that it embraced several orders in separate suits.

With respect to the form of the petition of appeal, the 50th Order of August, 1841, directs "That in any petition of rehearing of any decree or order made by any Judge of the Court, it shall not be necessary to state the proceedings anterior to the decree or order appealed from, or sought to be reheard."

It was usual, before this Order, for the petition shortly to state the facts of the case, as they appeared in the pleadings; and it was not irregular for it to set forth the grounds insisted upon in the answer, against making the decree.2 The Order does not seem to have prohibited this practice, but to have left it to the discretion of the counsel by whom it is prepared, to make it a vehicle for a restatement of the case, or not, as he may think it most convenient. As, however, the petition is usually considered as a mere foundation upon which the Chancellor's fiat issues, and is seldom or ever read in Court, in general any restatement of the case must be unnecessary. It is clear that it must not state any matters which do not appear in the pleadings, or the statement of which is not warranted by them. If any order of the Court has been made since the decree, for the purpose of carrying its provisions. into effect, it should be stated; and the circumstance of such an order having been made by consent will not prejudice the appellant's right to have the cause reheard.4

Where the petition is improperly framed, e. g., if it make a dif ferent case from that on which the decree was made, or intro

1 Boys v. Morgan, 3 M. & C. 661.

2 Wood v. Griffith, 19 Ves. 550.

Ibid.; and Nevinson v. Stables, 4 Russ. 210.

Wood v. Griffith, ubi supra; Turner v. Turner, 2 De G., Mac. & Gor. 28. A rehearing of a bill of foreclosure will not be ordered, when it appears from the petition that another decree would be rendered for the same amount. Hurlburd v. Freelove, 3 Wis. 537.

duce representations which were not made in the Court below, the Court will, on application by motion, order it to be taken off the file, with costs, the deposit to go in part of costs. It seems, however, that it will, on such an occasion, introduce into the order a proviso, that it is to be without prejudice to the appellant's presenting another petition in more regular form.2

It is not necessary that a petition for a rehearing should state the reasons why the party presenting it is dissatisfied with the original decree or order; but it usually states, in a general manner, that he is aggrieved by it, or by part of it; and prays that the cause, &c., may be reheard, and either that the decree may be reversed, or that it may be altered in such points as are objected to.3

A certificate must be annexed to every petition for a rehearing, signed by two counsel, certifying "that they conceive that the cause is proper to be reheard." This is required in order to guard against the abuse of the right to appeal, by the pledge of counsel that the case is fit to be reheard.4

The counsel who sign the certificate are usually those who were concerned in the original hearing, or at least one of them; and "such credit is given by the Court to their opinion that the cause ought to be reheard, that it will, in general, order the cause to be set down" as a matter of course.5

1 Wood v. Griffith, ubi supra.

• Ibid.

It is irregular and an infraction of the rule of the Court in Florida, to accompany the petition with a written argument and the citation of authorities. Smith v. Croom, 7 Florida, 180.

The 88th Equity Rule of the United States Courts requires, that every petition for a rehearing shall contain the special matter or cause on which a rehearing is applied for; shall be signed by counsel, and the facts therein stated, if not apparent on the record; shall be verified by the oath of the party, or of some other person. No rehearing shall be granted after the term at which the final decree of the Court shall have been entered and recorded, if an appeal lies to the Supreme Court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the Court, in the discretion of the Court. In New Jersey, the petition must be signed by two counsel, except in cases submitted without argument, when it shall be sufficient if signed by one counsel. Chancery Rule xix. § 1. See Emerson v. Davies, 1 Wood. & Minot, 21, 28; Ex parte Terry, Rice Ch. 1; Wiser v. Blachley, 2 John. Ch. 488.

'Monkhouse v. The Corporation of Bedford, 17 Ves. 380; Ex parte Terry, Rice Ch. 1; Faussett v. Ormsby, 1 Irish Eq. 388; Emerson v. Davies, 1 Wood. & Minot, 22, 23.

• Per Lord Hardwicke, in Cunyngham v. Cunyngham, Amb. 91; see Attorney

But although the general practice is for the Lord Chancellor to order the cause to be set down for rehearing, as a matter of course, upon the certificate of counsel, he may, if he has any doubt upon the subject, order the petition itself to come on for hearing, before he orders it to be set down.1

The proper course is, where there is any irregularity in the petition, for the party respondent to make a special application to the Court, by motion, to have the petition taken off the file; to which may be added, if the order for setting down the petition has been General v. Brooke, 18 Ves. 325; East India Company v. Boddam, 13 Ves. 423; Wilcox v. Wilcox, 1 Ired. Ch. 36; Cotton v. Parker, 1 Sm. & M. Ch. 125, The mere certificate of counsel has no such effect in obtaining a rehearing in the United States. Jenkins v. Eldredge, 3 Story C. C. 299, 304; Emerson v. Davies, 1 Wood. & Minot, 21; Field v. Schieffelin, 7 John. Ch. 256; Land v. Wickham, 1 Paige, 256; Decarters v. La Farge, 1 Paige, 574.

1

2 Cox, 159. Rehearings in Equity, after a decree, are not a matter of right, but rest in the sound discretion of the Court. Daniel v. Mitchell, 1 Story C. C. 198; Land v. Wickham, 1 Paige, 256; Travis v. Waters, 1 John. Ch. 48; Field v. Schieffelin, 7 ib. 256. Except in cases provided for by the rules of the Court. Land v. Wickham, 1 Paige, 256; Harrison v. Hall, 1 Hopk. 112. If a motion for rehearing is made for delay, it will be refused. Land v. Wickham, 1 Paige, 256. A rehearing will not be granted on account of the discovery of new evidence or new matter; Mead v. Arms, 3 Vermont, 148; nor because the importance of the testimony has only been discovered since the decision; if the party had it in his power to ascertain its importance before the hearing, and has neglected to do so, and obtain the testimony; although the justice of the case might be promoted by it. Provost v. Gratz, 1 Peters C. C. 364. See Daniel v. Mitchell, 1 Story C. C. 198; Hinson v. Pickett, 2 Hill Ch. 357; Baker v. Whiting, 1 Story C. C. 218; Robinson v. Sampson, 26 Maine, 11; Jenkins v. Eldredge, 3 Story C. C. 299. A rehearing will generally not be allowed where the newly-discovered evidence is merely cumulative upon the litigated facts already in issue. Baker v. Whiting, 1 Story C. C. 218; Dunham v. Winans, 2 Paige, 24; Jenkins v. Eldredge, 3 Story C. C. 299, 310, 311. Nor for the purpose of contradicting a witness examined by the adverse party. Dunham v. Winans, 2 Paige, 24. Nor to enable a party to release a witness declared incompetent on the hearing, and to re-examine him. Ib. Error of judgment or mistake of law by counsel, as to the pertinency or force of evidence, furnishes no ground for a rehearing. Baker v. Whiting, 1 Story C. C. 218; Jenkins v. Eldredge, 3 Story C. C. 299, 316; Dennett v. Dennett, 4 N. Hamp. 535. See Decarters v. La Farge, 1 Paige, 574. It is not enough, on an application for a rehearing, to show that injustice has been done, but it must be shown that it has been done under circumstances which authorize the Court to interfere. Walsh v. Smyth, 3 Bland, 9.

If a party voluntarily absents himself from the hearing, he cannot appeal from a decree rendered in his absence; and if his absence was accidental, his remedy is by a petition for a rehearing, and not by an appeal. Townsend v. Smith, 1 Beasley (N. J.) 350.

made, an application, that the order may be discharged with costs, which was the course pursued in Wood v. Griffith.

The certificate annexed to the petition having been duly signed by counsel, the petition and certificate must be left with the secretary of the Judge to whom it is addressed. Together with the engrossment of the petition a copy of the decree or order appealed against, and a fair copy of the petition itself, is left with the secretary.1

The fiat of the Lord Chancellor, upon this petition, is usually to the following effect:" Upon the petitioner, or his solicitor, consenting to pay such costs (if any) as the Court shall think fit to award, in respect of any proceedings had since the said decree (or order), and upon his depositing 207. with the Registrar in a week, let this appeal be set down to be heard next after the rehear ings and appeals already appointed."

The petition having been answered, the undertaking required by the fiat to be signed by the petitioner, or his solicitor, must be added to it, and signed accordingly.2 The object of the Court, in requiring this undertaking, was discussed before Lord Cottenham; and it appears, that it is intended to provide for the reimbursement to the respondent, of all such expenses as he may be put to, in prosecuting the decree or order appealed against. It was con

1 In New Jersey, a copy of every petition for a rehearing shall be served on the opposite party, with a notice of presenting the same. Chancery Rule xix. § 2. Notice must be given in Vermont. French v. Chittenden, 10 Vermont, 127, The 16th Order of 1842 directs, that "The signing of petitions of rehearing and appeal," shall be one of the duties hereafter to be performed by the solicitors in place of the clerks in Court.

3

An appeal granted becomes a nullity upon a failure to give the appeal-bond as required. Wickliffe v. Clay, 1 Dana, 589. The execution of the decree will not be stayed, if no bond be given. Bryson v. Petty, 1 Bland, 183. It is not necessary that an appeal bond should be conformable in all respects to the statute, but only that it be sufficient in substance, so as to secure to the party, for whose benefit it is given all his rights. Foster v. Tyler, 7 Paige, 48. Where a suit was against one as executor, and in his own right as legatee, and a decree was made against him personally, he was required, on appealing, to give a bond with surety. Erskine v. Henry, 7 Leigh, 378. See Shearman v. Christian, 1 Rand. 73; Wilson v. Wilson, 1 Hen. & Munf. 15; Sadler v. Green, ib. 26. For other decisions upon appeal bonds, their form, effect, &c., see Clark v. Clark, 7 Paige, 607; Ridabock v. Levy, 8 Paige, 197; Tyler v. Simmons, 6 Paige, 127; Foster v. Tyler, 7 Paige, 48; North Amer. Coal Co. v. Dyett, 4 Paige, 273; City Bank v. Bangs, ib. 285; Potter v. Baker, ib. 290; Rogers v. Paterson, ib. 450; Eldridge v. Howell, ib. 457; Braxton v. Morris, 1 Wash. 381; Brown v. Math