CH. XXXII. from, the Court allowed it to be paid out, notwithstanding the appeal.1 § 1. Security to refund money some times required. Time for foreclosure en Where, however, the circumstances make it expedient, the Court may require a party entitled to receive a sum of money or costs, to give security for the repayment, if the decree should be reversed.1 In like manner, where a decree was obtained by an equitable mortgagee, for the payment of principal, interest, and costs, larged, upon within a fixed time, in default of which the estate was to be sold, the Court refused to suspend the execution of the decree; but gave six months, on the defendant's bringing the money into Court, consenting to a receiver, and paying the interest and costs the plaintiff undertaking to repay, if the decree should be reversed.2 terms. ses may Decree not The Court will never suspend proceedings under the decree, on suspended, merely bethe mere ground that, if they are prosecuted, the parties will, if cause expen- the decree is reversed, be put to unnecessary expense. Thus, it incurred by is not the habit of the Court to suspend the taking of an account.* proceedings Nor will it suspend the proceedings under a decree directing the specific performance of a contract: at least, it will not go further than to direct the execution of the conveyance to be stayed." in Chambers. I By what Where ap- Every application to stay proceedings, upon a decree or order which is appealed from, must be made first to the Judge who pronounced the decree or order. It is conceived, however, that in cases of appeals to the House of Lords, the party may still, as formerly, apply for a stay of proceedings against the decree so appealed from, either to that House, or to the Court below." 1 Way v. Foy, 18 Ves. 452; and see Suisse v. Lord Lowther, 2 Hare, 438; Swift v. Grazebrook, 3 M'N. & G. 6; Gibbs v. Daniel, 9 Jur. N. S. 632; 11 W. R. 653, L. JJ.; Taylor v. Midland Railway Company, 30 Beav. 219; Monypenny v. Monypenny, 8 W. R. 430, V. C. W.; Ralli v. Universal Marine Assurance Company, 10 W. R. 327, L. JJ.; Lord v. Colvin, i Dr. & Sm. 475; Mackintosh v. Great Western Railway Company, 11 Jur. N. S. 705; 13 W. R. 1029, L. JJ.; Barnes v. Fewkes, L. R. 1 Eq. 392, V. C. W.; Bourne v. Brickton, 1 W. N. 243, V. C. K.; City Bank v. Bangs, 4 Paige, 285; Amer. Ins. Co. v. Oakley, 9 Paige, 496. 2 Monkhouse v. Corporation of Bedford, 17 Ves. 380; and see ante, pp. 999, 1000. In a case where there were several mortgages to a large amount, which were undisputed, and of subsequent judgments, some of which were in controversy, the Court refused, on the application of the mortgagor, to stay proceedings on the execution under the decree of foreclosure; but proposed to order, if requested, that the surplus money arising from the proceeds of the sale under the decree of foreclosure, after satisfying the mortgage debts, should be brought into Court to abide the result of the controversy respecting the judgments. Schenck v. Conover, 2 Beasley (N. J.), 31. 3 The appellant, however, upon a petition of rehearing, is always required to give an undertaking to pay such costs, as the Court shall award, in respect of any proceedings had since the decree or order. Price v. Dewhurst, 4 M. & C. 282; Seton, 1158; and see Corporation of Gloucester v. Wood, 1 Phil. 493, 497; 9 Jur. 673. 4 Nerot v. Burnand, 2 Russ. 56, 58. 5 Gwynn v. Lethbridge, 14 Ves. 585. 6 Ord. VI. 12. Before this order, the application could only be made to the Appellate Court. Macnaghten v. Boehm, 1 J. & W. 48; see also Huguenin v. Baseley, 15 Ves. 180; Gwynn v. Lethbridge, ubi sup. It is presumed that the order applies to the office, and not to the person of the Judge. See ante, p. 398; and see Reece v. Reece, 1 M. & C. 372. 7 Huguenin v. Baseley, ubi sup; and Ord. of H. L., 12 Aug., 1807, cited 15 Ves. 184; but the House will not, in general, entertain the application, until it has been made to the Court below. Macq. H. L. Prac. 236. CH. XXXII. § 2. Application made. An application of this nature is made by motion, of which notice must be given;1 and it seems that, according to the course of the Court, the applicant must pay the costs of the application." If the order appealed against is one which directs the transfer to stay: how of stock, or payment of money, out of Court, and it is wished Costs. to prevent the transfer or payment being made pending the appeal, immediate notice of the appeal should be given to the Accountant-General: who, upon such notice, will be justified in not to part 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.3 SECTION II. Rehearings and Appeals in the Court of Chancery. Notice to Accountant- with fund. cery: how Until recently, rehearings in the Court of Chancery were, neces- Court of Apsarily, either before the same Judge, or before the Lord Chancellor; peal in Chanbut now, the Lord Chancellor, and the Lords Justices of the Court constituted. of Appeal in Chancery, constitute the Appellate Court. It is not, however, necessary that the Lord Chancellor should sit together with the Lords Justices; but all the jurisdiction, powers, and authorities of the Court of Appeal may be exercised, either by one only of the Lords Justices and the Lord Chancellor, sitting together, or by both Lords Justices sitting apart from the Lord Chancellor, either in his absence or during the same time as he is sitting; and the Lord Chancellor may also, by himself, exercise all the jurisdiction, powers, and authorities he formerly had." Since the creation of this Court, appeals are usually marked for hearing before the Lords Justices: unless appointed to be heard before the Lord Chancellor, or the full Court." House of Lords. An appeal lies from the decision of this Court to the House of Appeal lies to Lords, in the cases in which the like decision of the Lord Chancellor would have been subject to appeal." The decision of the majority of the Judges of the Court of Appeal is taken and deemed to be the decision of the Court; and if the Judges of the Court are equally divided in opinion, the decree or order appealed from is taken and deemed to be affirmed. 1 For form of notice, see Vol. III. 2 Lady Topham v. Duke of Portland, 1 De G., J. & S. 603; Waldo v. Caley, 16 Ves. 206, 212, 215; Willan v. Willan, ib. 216, 218; see, however, Earl of Shrewsbury v. Trappes, 2 De G., F. & J. 172. 3 Ferguson v. Tadman, 1 R. & M. 331. 4 14 & 15 Vic. c. 83, § 1. 5 14 & 15 Vic. c. 83, § 1. The Court of Appeal may call to its assistance, if necessary, one or more of the Common Law 8 Decision of majority of binding; if divided, decree to be affirmed. Court to be CH. XXXII. § 2. Rehearing: when allowed. What decrees Where order made upon petition. Orders on motion may be discharged on motion; but decrees, and decretal orders on motion, must be reheard on petition. 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.1 If a party is dissatisfied with a decree or order which has not been enrolled, the proper course, where it cannot be rectified in the manner already pointed out,2 is to apply, by petition, for a rehearing. This he may do, whether the decree or order is made upon the hearing of the cause, or of a motion for decree, or of a demurrer or plea, or upon further consideration, or upon exceptions. A decretal order cannot, in fact, be discharged in any other manner; and where an attempt was made, by motion, to discharge an order, pronounced by consent upon further directions, on the ground that the party had been surprised, Lord Thurlow refused to make the order upon motion: although he appeared to think, that, where any thing is inserted in a decretal order, as by consent, to which the party has not consented, there must be some way of rectifying it, namely, by bill of review; but that it cannot be done by motion.1 The same rule, also, prevails where 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 decree or decretal order. Orders made upon motion are not proper subjects for a rehearing; but may be varied or discharged, upon application, by motion, either to the Judge who made the order, or to the Court of Appeal. A decree or decretal order made on motion, such as an order in a foreclosure suit under the statute, or a decree made on a motion for a decree, cannot be discharged on motion; but must be reheard 1 Blann v. Bell, 2 De G., M. & G. 775, 783; 16 Jur. 1103, 1105. The Court has no jurisdiction to correct an error in an order of the Lord Chancellor's; AttorneyGeneral v. Mayor, &c., of Exeter, 22 L. J. Ch. 418, L. JJ. 2 Ante, p. 1028. 3 See Coleman v. Franklin, 26 Geo. 368. So long as the decree and proceedings are not enrolled, it is in the power of the Court to order a rehearing. But granting a rehearing is a matter of discretion in the Court; it is never a matter of right. The N. J. Zinc Co. v. The N. J. Franklinite Co., 1 McCarter (N. J.), 311; Travis v. Waters, 1 John. Ch. 48; Brumagim v. Chew, 4 C. E. Green (N. J.), 337, 338. Rehearings in Equity are allowed in the United States Courts only where some plain omission or mistake has 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, 299. "It has been the constant habit of the Supreme Court of the United States, to refuse rehearings 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, 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 otherwise. Baker v. Whiting, 1 Story, 218; Jenkins v. Eldredge, 3 Story, 307, 308. 4 Anon., 1 Ves. J. 93. 5 Bishop v. Willis, 2 Ves. S. 113. 6 Cadle v. Fowle, 1 Bro. C. C. 515; ante, p. 993. CH. XXXII. § 2. 13 & 14 Vic. on a petition of rehearing or appeal, in the same manner, in every respect, as in the case of a decree made on the hearing of a cause.1 All decrees and orders made under the provisions of the Stat. Orders under 13 & 14 Vic. c. 35,2 are subject to rehearing, appeal, and review, and may be discharged and varied, in the same and the like manner as decrees and orders of the Court made in suits instituted by bill.3 c. 35. where defect may be otherwise remedied. A rehearing ought never to be applied for, where the defect, in No rehearing the decree or order, is one which can be remedied by any of the allowed, methods before pointed out; and, as a general rule, it cannot be obtained till the decree or order has been passed and entered. Thus, in Robinson v. Taylor, the Court refused to allow a cause to be reargued, upon a petition to alter the minutes; and the same rule was laid down, by Lord Eldon, in Taylor v. Popham, where an application was made, whilst the decree was in minutes, to rehear a cause heard by Lord Erskine. only allowed isting at the on points ex decree. A rehearing can only take place for the purpose of altering the Rehearing 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 subsequent case as it originally stood, a rehearing will not be permitted: in inconvensuch a case, a new bill must be filed." Where the objection to a decree is upon matter of law apparent, or a mistake in law, to be collected from all the pleadings and evidence, the decree not being signed and enrolled, it is the subject of a rehearing; and there is no occasion for a bill in the nature of a bill of review; unless a supplemental bill is also necessary, to introduce new facts: in which case, the cause will come on to be heard upon the matter of that supplemental bill, together with the rehearing of the original cause.8 Not to correct ience. Rehearing, and hearing on supplemental bill. A cause which has been heard by the Master of the Rolls, or Before what one of the Vice-Chancellors, may either be reheard before the Judge. Judge who heard it, or before the Court of Appeal. In the latter § 2. CH. XXXII. case, it is generally termed an appeal, although, in fact, it is only a rehearing; and a second rehearing by the Court of Appeal may sometimes be obtained.1 Orders of course. The Master of the Rolls and Vice-Chancellors respectively may discharge, reverse, or alter any order made on motion or petition of course by any other of them, or by the Lord Chancellor, or Lords Justices. An application to discharge, reverse, or alter any order made on motion or petition of course by the Lord Chancellor, the Lords Justices, the Master of the Rolls, or one of the Vice-Chancellors, must be made to the Judge to whom special applications in the cause or matter in which such order is made ought to be made: namely, the Judge to whose Court the same is attached; but no order made by one Judge for another, during vacation, will be reheard, for the purpose of being discharged or tion, can only varied, otherwise than by the Lord Chancellor, or the Lords Orders made by one Judge for another during vaca be reheard by Court of Appeal. Appeals from orders made at Chambers. Master of the cellor, cannot rehear decrees made by the others of them, or by the Lord Chancellor or Lords Justices. Justices." 5 Orders made in Chambers by the Judge in person are subject to appeal by motion; but as we have seen, the Court of Appeal Will, in general, decline to hear appeals directly from Chambers where the parties have not had an opportunity of being heard by counsel.8 Except as above stated, the Master of the Rolls cannot rehear a decree or order of the Lord Chancellor, or Lords Justices, unless specially authorized so to do; nor of a Vice-Chancellor; and, in like manner, no rehearing can take place before a Vice-Chancellor of any decree or order made by the Lord Chancellor or Lords Justices,10 unless under a special authority; nor can a ViceChancellor rehear any matter in which an order or decree has been made by any other Vice-Chancellor, or by the Master of the Rolls.12 7 15 & 16 Vic. c. 80, §§ 13, 15; Saunders v. Druce, 3 Drew. 139; Snowdon v. Metropolitan Railway Company, 1 De G., J. & S. 408; 9 Jur. N. S. 588; M'Veagh v. Croall, 1 De G., J. & S. 399, 401; 9 Jur. N. S. 240. 8 Stroughill. Gulliver, 1 De G. & J. 113; Harrison v. Mayor of Southampton, 29 L. T. 61, L. JJ.; Hutchinson v. Swift, 11 Jur. N. S. 274; 13 W. R. 532 L. JJ.; Ridgway . Newstead, 4 De G. & J. 15. 9 It has been said, that a motion may be made before the Master of the Rolls, to discharge an order, made by the Lord 11 Chancellor ex parte, because only one side being heard, it is a continuance of the same motion. Davy v. Seys, Mos. 72. It seems, however, that this is only in consequence of a special authority, introduced into the order: the practice of the Court being, where there is an ex parte application to the Lord Chancellor, to introduce into the order, made in such cases, a provision that the other party shall be at liberty to apply to one of the other Judges of the Court to vary or discharge it; see Lindsay v. Tyrrell, 24 Beav. 124; 2 De G. & J. 7; 3 Jur. N. S. 1014. 10 Smith v. Earl of Effingham, 10 Beav. 589, 598. 11 Shirley v. Earl Ferrars, 5 L. J. (Ch.) N. S. 200, M. R. 12 53 Geo. III. c. 24, § 2; 5 Vic. c. 5, § 19; 14 & 15 Vic. c. 4; 15 & 16 Vic. c. 80, § 52 et seq. |