not frequently done, though the utility of the practice has been recognized;1 and it seems that, as a declaration of the rights of the parties is the act of the Court, it ought not to be introduced where the decree is taken by the plaintiff upon the defendant's making default at the hearing.2

It may be mentioned, in this place, that when a decree is made by consent, it should be so stated in the decree.3

SECTION III.

Of Drawing up, Passing, and Entering Decrees.

WHEN the decree is pronounced by the Court, the minutes of it are taken down by the Registrar, and are delivered to the party having the carriage of the decree.5

It has of late been found convenient to prepare the copy of the minutes with a statement of the names of the parties appearing, and the evidence adduced in the form in which they are to be entered in the decree or order. The party entitled to the carriage of the decree should, immediately after it is pronounced, leave his papers at the Registrar's office to enable the Registrar to draw up the decree, and should duly proceed therein, otherwise the Registrar may draw it up at the instance of any other party and deliver it to him. The solicitors of the other parties should forthwith bespeak copies of the minutes, if they require them, and leave their briefs at the office. When the minutes are prepared, the solicitor having the carriage of the decree or order gives notice to attend the Registrar to settle the minutes.

1 Bax v. Whitbread, 16 Ves. 24; Gordon v. Gordon, ubi supra. Jennings v. Simpson, 1 Keen, 404. A bill will not be sustained which seeks merely a declaration of future rights. Cross v. De Valle, 1 Wallace (U. S.) 1; Langdale v. Briggs, 39 Eng. Law & Eq. 194. See Lorillard v. Coster, 5 Paige, 172; Hawley v. James, 5 Paige, 442; Grove v. Bastard, 2 Phil. 621; Davis Angel, 8 Jur. N. S. 709; S. C. 8 Jur. N. S. 1024; Bowers v. Smith, 10 Paige, 200; Baylies v. Payson, 5 Allen, 473.

3 See Seton on Decrees, 375.

See Rogers v. Rogers, 2 Paige, 473; Whitney v. Belden, 4 Paige, 140. 5 In strictness, this ought always to be done; see Beames's Ord. 270.

• Seton on Decrees, 583.

If, upon perusing the minutes, it appears that anything is doubtfully expressed, or contrary to the plain sense and meaning of the Court, or that anything has been omitted in them which ought to have been inserted, and the Registrar refuses to make an alteration in them, an application must be made to the Court to vary the minutes. This application was made by petition, stating the specific matter to be added or altered;1 but it is now usually by motion, of which notice must be given.2 Sometimes the cause is, on the application of counsel, allowed to be put in the paper to be spoken to on the minutes. The Registrar should be informed of the application.

It is to be observed, that all applications to vary the minutes of decrees must be made to the Court by which the decree was pronounced, and that the Lord Chancellor has no power to alter a decree made by an inferior Judge, although he himself was that Judge; therefore, where a decree had been made by Lord Cottenham, when Master of the Rolls, an application to him, after he was Lord Chancellor, to vary the minutes of the decree, and which was not consented to, was refused.3

Formerly, by an Order of the Court, petitions to rectify minutes "were directed to be presented within six days after the decree or order was pronounced, but of late years this rule has not been adhered to; and applications of this nature will in general be permitted, provided the decree remains in minutes.5 Strictly speaking, questions of importance ought not to be discussed upon appli1 Grey v. Dickenson, 4 Mad. 464.

1

Harr. 321; Webber v. Hunt, 1 Mad. 13; Punderson v. Dixon, 5 Mad. 121; Clark v. Hall, 7 Paige, 382; Murray v. Blatchford, 2 Wendell, 221; Rogers v. Rogers, 1 Paige, 188. A motion to rectify the minutes of a decree may be sustained at any time before the decree is recorded, Gibson v. Crehore, 5 Pick. 146; Park v. Johnson, 7 Allen, 381, 382, and may be argued, if the Court think proper. Gibson v. Crehore, 5 Pick. 146. But the Court may, in the exercise of its discretion, refuse to receive such motion, if there has been any improper and injurious delay in bringing it forward. Ib. By the 85th Equity Rule of the United States Courts, it is provided, that "clerical mistakes in decrees, or decretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enrolment thereof, be corrected by order of the Court or a Judge thereof, upon petition, without the form or expense of a rehearing."

* Reece v. Reece, 1 M. & C. 372.

Beames's Ord. 325.

* 1 Turn. & V. 319. See, however, Prince v. Howard, 14 Beav. 208.

cations to vary minutes, but this rule is not always adhered to, and discussions of great moment have sometimes been permitted.1 The proceedings upon petitions or motions of this description are the same as those upon other applications by the same means, and if an order to vary the minutes is pronounced, it must be passed and entered and served upon the adverse solicitor, but it is not usual to draw up this order upon the application, as the Registrar can amend the minutes as varied.2

The minutes being settled, the decree is transcribed from the minutes, and notice is then given to allow the Registrar to pass it. The decree is said to be passed when the Registrar has inscribed his initials in the margin, at the foot of the last page, as an authority to the clerk of entries to enter it in the Registrar's book.

The decree being passed, there is still a remaining form to be observed, before any proceeding can be had upon it, viz. the entry of it in the entering book at the Registrar's office; this is done by leaving the original decree with the entering clerk of the divis ion under which the letter of the first-named plaintiff falls to be entered, and the decree appearing by the Registrar's signature to be passed, a true copy thereof is entered, of course, in the books. If the party in the possession of the original decree neglects or refuses to enter it, the office copy, regularly passed and signed, may be entered in its stead. The entry of a decree or order is supposed to be completed when it is left with the entering clerk; and, where it is intended to sue out a writ of fieri facias or elegit upon it, under the 1 & 2 Vict. c. 110,6 care must be taken that the day of the month and year, in which the same was left for entry, be marked upon it by the entering clerk in whose division the same may be, as it is provided by the 2d Order of the 10th May, 1839, that"Upon every such order hereafter to be entered, the entering clerk of this Court, in whose division the same may be, shall, at the request of the party leaving the same, mark the day of the month and year on which the same shall be so left for entry, and no 1 Perry v. Phillips, 1 Ves. jr. 251; and see Bootle v. Blundell, 1 Mer. 202. Turn. & V. 318.

See Whitney v. Belden, 4 Paige, 140.

✦ 30th Order, December, 1833.

5 See Thompson v. Goulding, 5 Allen, 84, 85.

See post, 1044.

In Massachusetts, every order and decree shall bear date as of the day when the same is actually entered by the clerk, and the date be noted upon the order or

writ of fieri facias or elegit shall be sued out upon any such order, unless the date of such entry shall be so marked thereon as aforesaid."

By the 30th Order of 1833, it is directed, "That all decrees and orders shall be entered within one week after the same shall be left for entry, and that all such entries shall be examined by one of the clerks of entries, and be marked with his initials, to denote such examination."

All proceedings under a decree or order, before it is entered, are voidable and irregular; but an office copy of a decree, signed by the Registrar, is effective for every purpose of proceeding in the cause.

An order to enter a decree, nunc pro tunc, may be obtained as a matter of course, upon application by motion in Court, or by petition at the Rolls,2 and, when entered and passed, must be left decree and upon the docket by the clerk at the time of entering the same. Genl. Sts. c. 113, § 16. But no decree can be said to be entered of record until it is formally drawn out and filed by the clerk. A mere order for a decree before it is extended in due form and in apt and technical language cannot be held to be a complete record of the judgment of the Court. Bigelow C. J., in Thompson v. Goulding, 5 Allen, 84, 85.

1 Tolsen v. Jervis, 8 Beav. 364.

Where one of the defendants dies after the argument of a cause, and before judgment, the decree will be entered so as to have relation back as of the day of the final hearing. Campbell v. Mesier, 4 John. Ch. 334; Bank of U. States v. Weisiger, 2 Peters, 481. Where the plaintiff died after the entry of an appeal from the decision of a Vice-Chancellor, and after the cause was ready for a hearing upon the appeal, but the fact of his death being unknown to the counsel, the cause was afterwards heard and decided by the Chancellor upon the appeal; it was held, that the decree upon the appeal might be entered nunc pro tunc as of a day previous to the death of the plaintiff and after the entering of the appeal. Vroom v. Ditmas, 5 Paige, 528. See Wood v. Keyes, 6 Paige, 478. The Court will direct a decree to be made up from the Registrar's notes, and entered nunc pro tunc, on the application of a third person. Stoney v. Saunders, 1 Hayes & J. 341 ; but not after a long lapse of time. Witby v. Norton, 4 Younge & Coll. 266. An enrolment made nunc pro tunc will have relation back to the time of the decree, and protect an intermediate sale. Goelet v. Lansing, 6 John. Ch. 75. But a decree cannot be entered nunc pro tunc, so as to affect by relation the rights of persons other than parties, or their immediate representatives, acquired before the decree was actually pronounced. Dawson v. Scriven, 1 Hill Ch. 177.

A decree nunc pro tunc is always admissible where a decree was ordered or intended to be entered, and was omitted to be entered only by the inadvertence of the Court; but a decree, which was not actually meant to be made in a final form, cannot be entered in that shape, nunc pro tunc, in order to give validity to

with the entering clerk, at the Reports office, when the decree is left to be entered.1

It may be observed here, that orders to enter decrees nunc pro tunc will be made after a very long interval has elapsed from the time of pronouncing the decree; and that, even where the original decree has been lost, the Court has permitted it to be entered nunc pro tunc, from the office copy, after the lapse of twenty-three years.2

In Jesson v. Brewer, where the pleadings in the cause as well as the original decree (which was pronounced twenty-one years before the application) were lost, a paper, purporting to be a copy of the decree, was allowed to be entered as the decree, and enrolled, it appearing from the minute book of the Registrar that such a decree was pronounced at the time, and from a Master's report, that it had been acted upon. 1

When a party discharged his solicitor after an order was passed, but before it was entered, the solicitor was directed to produce the order to be entered, notwithstanding he had a lien then for his costs.4

It may be noticed in this place, that no decree or order of the Court will have the effect of a judgment at Law under the Act for abolishing Arrest on Mesne Process,5“ unless or until a memorandum or minute, containing the name and the usual or last known place of abode, and the title, trade, or profession of the person whose estate is intended to be affected thereby, and the Court, and the title of the cause or matter in which such decree or order shall have been obtained or made, and the date of such decree or order, and the account of the debt, damages, costs, or moneys thereby recovered or ordered to be paid, shall be left with the senior Master of the Court of Common Pleas at Westminster, who is directed forthwith to enter the same particulars in a book, in alphabetical order, by the name of the person whose estate is intended to be affected by such decree or order, and is to be entitled for every such

an act done by a judicial officer under a supposition that the decree was final instead of interlocutory. Gray v. Brignardello, 1 Wallace (U. S.) 627.

1 Hind. 432.

2 Lawrence v. Richmond, 1 Jac. & W. 241; Donne v. Lewis, 11 Ves. 601. 31 Dick. 371.

Clifford v. Turner, 2 De G. & Sm. 1.

5 1 & 2 Vict. c. 110, s. 18.