defendant, upon application, to enlarge the time appointed for payment of the principal, interest, and costs, it will not do so upon a a bill to redeem, for then the plaintiff comes into Court saying, "Here is the money, give me the estate"; but in a suit by a mortgagee to foreclose, the Court acts against a person unwilling to pay, and imposes upon him the terms that if he does not pay he shall lose his estate.1

It has been before stated, that when a defendant makes a default at the hearing of a cause," the decree shall be absolute in the first instance, without giving the defendant a day to show cause, and such decree shall have the same force and effect as if the same had been a decree nisi in the first instance, and afterwards made absolute in default of cause shown by the defendant." 2

Since this Order the practice has been, upon a defendant making default, for the Court to hear the cause, and make such a decree as the plaintiff is upon the pleadings and evidence entitled to.3

SECTION II.

Of the Form of Decrees.

BEFORE we proceed to the consideration of the practice arising upon decrees when pronounced, it will not be out of place to make a few observations upon their form. Decrees, in general, consist of three parts:-1. The date and title; 2. The recitals; and 3. The ordering part; to which may sometimes be added, 4. The declaratory part, which, when made use of, generally precedes the ordering part.

1. The decree commences with a recital of the day of the month 1 Novosieki v. Wakefield, 17 Ves. 417.

244th Order, August, 1841. A decree entered by default and enrolled was set aside on motion and notice to the plaintiff, on payment of costs. Beekman v. Peck, 3 John. Ch. 415; Tripp v. Vincent, 8 Paige, 176; Carter v. Torrance, 11 Georgia, 654; Beach v. Shaw, 4 Barb. Sup. C. 288.

In New Jersey, if a defendant does not appear at the hearing before the Chancellor, the cause having been regularly noticed for argument, he cannot appeal from a decree thus rendered in his absence. Townsend v. Smith, 1 Beasley (N. J.), 350. See Dean v. Abel, 1 Dickens, 287; Stubbs v. Dunsany, 10 Vesey, 30; Sands v. Hildreth, 12 John. 493; Geltson y. Hoyt, 13 John. 576.

Hakewell v. Webber, 9 Hare, 541.

and year when it was pronounced, and of the names of the several parties to the cause; and, it is to be observed, that it is necessary that the parties, both plaintiff and defendant, should have the same titles in the decree as they have in the bill; 2 thus, if the plaintiff is described in the bill as executor or administrator, the decree must be accordingly.

2. Formerly decrees contained recitals of the pleadings in the cause. In like manner, a decree upon further directions, accord

1 See Whitney v. Belden, 4 Paige, 140; Barclay v. Brown, 7 Paige, 245. The caption of an order or decree, unless otherwise directed by the Court, should correspond with the time of the actual entry of the decree. Barclay v. Brown, ubi supra.

2 Curs. Canc. 159.

9 Seton on Decrees, 5, Where a decree is rendered, which does not recite the facts upon which it is founded, or which the Court considered as proved, it is error apparent on the face of the decree, for which a bill of review will lie. Burdoin v. Shelton, 10 Yerger, 41. See Peters v. Rosseter, 1 Root, 273; Bacon v. Childs, 1 Root, 466; Sampson v. Hunt, 1 Root, 521; Wernwag v. Brown, 3 Blackf. 458. But it is not necessary to state in a decree that all the preliminary steps towards maturing the cause for hearing were taken; it being intended where the cause was set for hearing, that it was regularly done, unless the party attempting to impugn the decree show the contrary. Quarrier v. Carter, 4 Hen. & Munf. 242. If the facts found as the basis of a decree are substantially the same as those alleged in the bill, it is not a ground of error in the decree that they vary in some unimportant particulars. Beers v. Botsford, 13 Conn. 146. The practice of reciting the pleadings, &c. in decrees has been abolished in some of the States, and by the Rules in Equity of the Supreme Court of the United States. By Rule 86 of the Equity Rules of the Supreme Court of the United States, it is provided that “in drawing up decrees and orders, neither the bill nor answer, nor any other pleadings, nor any part thereof, nor the report of any Master, nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin in substance as follows: This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz.'' [Here insert the decree or order.] See for New York, 1 Barb. Ch. Pr. 338; Dey v. Dunham, 2 John. Ch. 182. In Ohio a final decree need not set out a full statement of the facts on which the Chancellor's opinion is founded. Ludlow v. Kidd, 2 Ohio, 872; Strader v. Byrd, 7 Ohio, 184.

In Clapp v. Thaxter, 7 Gray, 384, 387, Thomas J. said: "In this country it is not ordinarily the practice to recite in the decree the bill, answer, or pleadings. But these with the decree constitute what may be considered the record of the cause." In Dexter v. Arnold, 5 Mason, 311, Story J. said: "In the Courts of the United States the decrees are usually general; they usually contain a mere reference to the antecedent proceedings without embodying them. But for the

ing to the old form, recited the ordering part of the original decree, and the Master's report made in pursuance of it.1

Many attempts have been made by the Judges of the Court, from time to time, to shorten the length of decrees, occasioned by the introduction of the above recitals; and we find in the books several General Orders which have been promulgated with that view.2

Those Orders were not, however, found sufficient to insure the requisite brevity and conciseness in drawing up decrees. Accordingly, notwithstanding a somewhat adverse opinion given by the Commissioners appointed in 1826 to inquire into the practice of the Court, the stat. 3 & 4 Will. IV. c. 94, § 10, has enacted, "That, unless the Court shall otherwise specifically direct, no recitals shall be introduced in any decree or order of the Court; but the pleadings, petition, notice, report, evidence, affidavits, exhibits or other matters or documents, on which such decree shall be founded, shall be merely referred to." 3

By the 27th of the Orders of 1833, made in pursuance of the above Act, it is directed that, "For the purpose of avoiding, as much as may be, expense and delay in the drawing of the decrees. and orders of this Court, it is directed that (except in orders for special injunctions, in which the usual recitals shall be inserted as heretofore) neither the bill nor answers, nor any part thereof, be -stated or recited in the original decree or order; and that, in orders made upon petitions, no part of the petition be stated or recited except the prayer; and, that the same principle of brevity be observed in all the orders of this Court made upon motion, so.

purpose of examining all errors of law, the bill, answers, and other proceedings are, in our practice, as much a part of the record before the Court, as the decree itself."

1 Seton on Decrees, 9. A decree pro confesso against a non-resident should: state the facts necessary to show that publication has been made agreeably to the rules of practice. Keiffer v. Barney, 31 Alabama, 192. It is not enough for a decree to recite that the defendant has been duly served with process, or regularly notified of the pendency of the suit, but the summons or advertisement should appear in the record. Randall v. Songer, 16 Ill. 27; Hanson v. Patterson, 17 Alabama, 738. But see Craig v. Sebrell, 9 Grattan (Va.), 131, where the contrary was held. It should appear affirmatively on the face of the decree on record, that the defendant had notice of the process. Allen v. Blunt, 1 Blatch. C. C. 480.

far as may be consistent with a statement, explaining the grounds upon which the order is made. And for the better understanding of the said Order, certain forms of decrees and orders, drawn pursuant thereto, are subjoined. And it is thereby directed, that such forms shall be observed in all cases, as nearly as may be."

By recent Orders, of November, 1855, all decrees are distinguished by the date of the year and the number of the cause in the books of the Clerks of Records and Writs.1

Moreover, the Clerks of Records and Writs are to enter the date of every decree, order, report and certificate made in the cause and a reference to the date or folio of the Registrar's book.

It may be noticed here, that the practice of the Court of Chancery, with regard to stating in the decree the evidence read in the cause, is merely to state it generally, without specifying the particular depositions which have been made use of. The entry is in the following words, viz.: "Whereupon, and upon debate of the matter, and hearing the will of J. P., date, &c., and the defendant's answers, and the proofs taken in this cause read, and what was alleged by the counsel on both sides, &c." This method of entering the evidence in the decree has been disapproved of, but, nevertheless, still continues. It is of material importance that the evidence should be entered in such a way as will at future times show precisely what has been received. In some very recent instances the date of filing affidavits is mentioned in the order or decree, and this practice would be convenient for reference in all cases.5

1 See also 12th Order, April, 1853.

2 See Moore v. School Trustees, 19 Ill. 83; Trenchard v. Warner, 18 Ill. 142; Tatum v. Hines, 15 Ark. 180.

3 Seton on Decrees, p. 6; Brend v. Brend, 1 Vern. 215; and see Bonham v. Newcomb, ib. 216. See, however, the observations of the Lord Chancellor in M'Mahon v. Burchell, 2 Phil. 138; Watson v. Parker, 2 Phil. 9; Parker v. Morrell, 2 Phil. 453.

* See Tatum v. Hines, 15 Ark. 180. A decree must be founded on and sustained by both the allegations and the proofs in the cause; and it cannot be based on a fact not put in issue by the pleadings. Carneal v. Banks, 10 Wheat. 181; Gregory v. Power, 3 Litt. 339. It must conform to the allegations in the pleadings, as well as to the proofs in the cause. Crocket v. Lee, 7 Wheat, 522; Ringgold v. Ringgold, 1 Harr. & J. 11; Pigg v. Corder, 12 Leigh, 69; Cloud v. Whiteman, 2 Harring. 401; Maury v. Mason, 8 Porter, 211; Smith v. Smith, 1 Ired. Ch. 83; Langdon v. Roane, 6 Alabama, 518.

5 Seton on Decrees, p. 6, last edition.

3. The ordering or mandatory part of the decree contains the specific directions of the Court upon the matter before it. These directions must, it is obvious, depend upon the nature of the particular case which is the subject of the decree, and cannot, therefore, now be made the subject of discussion. Certain regulations as to the mode of drawing up these directions in particular cases have, however, been laid down by the Orders of October 16, 1852.2 Where the decree is merely interlocutory, and directs an issue, it usually contains a reservation of the further matters to be decided, and generally, also, of the costs of the suit, till after the event of the issue shall be known. When it directs any accounts or inquiries to be taken or made in chambers, the cause is usually simply adjourned.

4. Where the suit seeks a declaration of the rights of the parties, the ordering part of the decree should be prefaced by such a declaration.3. Sometimes the Court has directed an insertion in the decree of the reasons for making the declaration, and of the grounds upon which it proceeds in making it. This, however, is

1 A decree ordering the sale of property in the hands of heirs must specify and identify it. Gayle v. Singleton, 1 Stew. 566. A final decree for money must specify the sum, not leave it to be ascertained by a Commissioner. Clark v. Ball, 4 Dana, 16. A decree to account should specify the time from which the account is to be taken. Cummins v. Adams, 2 Irish Eq. 394. By the 73d Equity Rule of the U. States Courts, every decree for an account of the personal estate of a testator or intestate, shall contain a direction to the Master, to whom it is referred to take the same, to inquire and state to the Court what parts, if any, of such personal estate are outstanding or undisposed of, unless the Court shall otherwise direct.

See Orders 8 to 13 inclusive. A decree may be so framed as to meet the case disclosed; but in its decree the Court must be consistent with itself. The Court may, without contradiction, pass a separate, a reciprocal, a direct, or an inverted decree, to meet the nature of the case. Lingan v. Henderson, 1 Bland, 275; Hodges v. Mullikin, ib. 507; Owing's Case, ib. 404. Where there are several defendants, and the subject in controversy is divisible, there may be a decree against all for a part; or, if they are disjunctively or separately liable, there may be a decree against each. Lingan v. Henderson, 1 Bland, 256. See Hodges v. Mullikin, ib. 507. Though specific legatees sue jointly, the decree ought to be several, in conformity to their respective rights. Quarles v. Quarles, 2 Munf. 321; Elliott v. Pell, 1 Paige, 263.

* Except where the Court makes a merely declaratory decree under the 50th section of 15 & 16 Vict. c. 86; Jenour v. Jenour, 10 Ves. 568.

Gordon v. Gordon, 3 Swanst. 478; Maynard v. Moseley, ib. 653; Onions v. Tyrer, 1 P. Wms. 343; Gibson v. Kinven, 1 Vern. 67, n.; Ex parte Earl of Ilchester, 7 Ves. 373; Attorney-General v. Clapham, 4 De G., Mac. & Gor. 607; 10 Hare, 617.