1

entry to the sum of five shillings; 1 all persons are to be at liberty to search the same book, on payment of the sum of one shilling.' And by 3 & 4 Vict. c. 82, s. 2, explained and amended by 18 & 19 Vict. c. 15, ss. 4 & 5, until such memorandum or minute had been left, notice of any judgment, decree, or order does not affect any purchaser, mortgagee, or creditor, either at Law or in Equity.

SECTION IV.

· Enrolment of Decrees.

A DECREE does not, strictly speaking, become a record of the Court until it has been enrolled; 2 and, although the Court itself, after it has been duly passed and entered, treats it as a foundation for ulterior proceedings, it is not considered of a sufficiently permanent nature to entitle it in other Courts to the same attention that is paid by one Court of Record to the records of other Courts of the same nature.

In fact till a decree has been enrolled, and thereby become a record, it is liable to be altered by the Court itself upon a rehearing, whilst a decree, which has been enrolled, is not susceptible of

1 1 & 2 Vict. c. 110, s. 19.

Where the decree is final as to any branch of the cause, or as to any of the parties thereto, it must be enrolled before a deed can be executed on a sale under the decree, and before an execution can be issued to enforce a performance of such decree. Minthorne v. Tomkins, 2 Paige, 102. This decision was under a rule in Chancery heretofore existing in New York. Decrees should be enrolled in all cases where a decree has been rendered, or an order of dismissal had, or any order in the nature of a decree, which determines the suit, whether such suit concerns real or only personal estate. Halst. Dig. 176. So, in all cases, where there are proceedings subsequent to a final decree, which go to alter such decree, the proceedings should be enrolled, but not where such proceedings do not alter the decree. Halst. Dig. 175.

In Massachusetts there is no proceeding in Equity such as the signing and enrolling of a decree in the English Court of Chancery. Clapp v. Thaxter, 7 Gray, 386. But a final decree formally drawn out and filed by the clerk, thereby becomes a record of the Court. Thompson v. Goulding, 5 Allen, 84, 85; Clapp v. Thaxter, 7 Gray, 386. In Bates v. Delavan, 5 Paige, 299, it was decided that the formal enrolment of a decree is not indispensable to its validity as evidence. Coleman v. Franklin, 26 Georgia, 368.

alteration except in a Court of Appeal or by bill of review.1 For this reason it is that a decree, which has not been enrolled, although it is in its nature a final decree, is considered merely as interlocutory, and cannot be pleaded in bar to another suit for the same matter.2 The advantage, therefore, to be obtained by the enrollment of a decree is to prevent its being the subject of a rehearing, and to enable the party benefited by it to plead it in bar to any new bill which may be filed against him for any of the matters embraced by the bill upon which the decree is founded.

1 Clapp v. Thaxter, 7 Gray, 385; Story Eq. Pl. § 403; Thompson v. Goulding, 5 Allen, 82. "The well-settled rule of Chancery practice is, that, after a decree has been enrolled, that is, after it has become matter of record, there can be no rehearing, either on motion or petition." Bigelow C. J., in Thompson v. Goulding, 5 Allen, 82; McMicken v. Perin, 18 Howard (U. S.) 507. A decree obtained by fraud, can be set aside only by original bill. Caldwell v. Giles, Riley Ch. 120; Burch v. Scott, 1 Bland, 112; Wright v. Miller, 1 Sandf. Ch. 103; Davoue v. Fanning, 4 John. Ch. 199; Sanford v. Head, 5 Cal. 297.

8 Story Eq. Pl. § 790; Mitf. Eq. Pl. by Jeremy, 237; Neafie v. Neafie, 7 John. Ch. 1. Although a decree in a former suit to which the plaintiff and defendant were parties cannot be pleaded in bar until it is signed and enrolled, it may be insisted on by way of answer. Davoue v. Fanning, 4 John. Ch. 199. It will not be allowed at the hearing, unless set up in the answer, or, if enrolled, pleaded. Lyon v. Tallmadge, 14 John. 501.

In Clapp v. Thaxter, 7 Gray, 384, 386, Thomas J., said: "There is no proceeding under our practice, such as the signing and enrolling of a decree in the English Court of Chancery. But that which is equivalent thereto is the entry of a final decree and judgment thereon as of the last day of the term, or, by the express order of the Court, at an earlier day; or when the cause has been continued nisi from any law term, a judgment entered by order of the Court as of the then last term of the Court in the county where the action is pending. Genl. Sts. c. 133, § 1, c. 112, § 31; Herring v. Polley, 8 Mass. 113. Though judgments, in Courts of Law, and final decrees in Equity are, in this country, matters of record, they are deemed to be recorded as of the term of the Court in which they are passed, though not then actually spread upon the record. In substance and effect they are deemed to be enrolled as of that term. Whiting v. Bank of U. States, 13 Peters (U. S.) 6; Dexter v. Arnold, 5 Mason, 303; Story Eq. Pl. § 403;" Thompson v. Goulding, 5 Allen, 83; Simms v. Thompson, 1 Dev. Ch. 197; McMicken v. Perin, 18 Howard (U. S.) 507; Allen v. Barksdale, 1 Head (Tenn.), 238; Newland v. Glenn, 2 Maryland Ch. Decis. 368; Husley v. Robinson, 16 Alabama, 793.

But in Massachusetts, by statute 1859, c. 237, substantially re-enacted in Genl. Sts. c. 113, a system was established based upon the theory, that the Court of Chancery is always open, and capable of transacting business without the formality of a stated term or session. Under this system full power was conferred upon the Supreme Judicial Court and upon the Justices thereof, to make and enter all decrees in Equity, either interlocutory or final, at any time, irrespective of

It will be convenient, in the first place, to set out the following General Orders concerning enrolments, issued on the 7th of August, 1852:

II. That all decrees and orders, and all dismissions, pronounced or made in any cause, claim or matter in this Court, which shall be enrolled, shall be so enrolled within six calendar months after the same shall be so pronounced or made respectively, and not at any time after without special leave of the Court, such leave to be obtained in manner next hereinafter mentioned.1

By a General Order of the Court, all decrees and dismissions, pronounced upon hearing the cause, were to be drawn up, signed and enrolled before the first day after the next Michaelmas or Easter Term after the same should have been so pronounced respectively, and not at any time after without special leave of the Court.2 This leave was granted at any time, and, in order to obtain it, a motion must have been made or petition presented at the Rolls, praying that the decree might be enrolled nunc pro tunc, upon which an order was made as a matter of course.

The effect of the above Order will be to abolish the practice of enrolling decrees nunc pro tunc. The following Order prescribes the manner in which an enrolment is to be obtained, when six calendar months have expired from the time when the decree was pronounced or made:

III. In case any party is desirous to enrol à decree, or order or dismission, after the expiration of six calendar months from the time the same shall have been made, he shall obtain an order for that purpose, and which order, unless made by consent of the adverse party, or on motion and notice to all the parties, shall be a conditional order in the first instance, but shall become absolute the regular terms established by law for the transaction of business on the common law side of the Court; and decrees, so entered, must be operative from the time when they are entered of record. They then become the definitive judgment of the Court, a record in a strict sense, by which the rights of the parties in controversy are finally adjudged. To a decree so entered, the fiction of law. by which a term of a Court is held to be an entirety, or one session, so that all judgments, unless otherwise specially ordered, are deemed to be rendered as of the last day of the term, and until the final adjournment to be within the control of the Court, does not apply. Per Bigelow C. J., in Thompson v. Goulding, 5 Allen, 84.

The application under this and the following Order must be made in the first instance to the Court to which the cause is attached; Butchardt v. Dresser, 1 Kay, Appx. XXVII.

3 Beames's Ord. 206.

without further order, unless cause is shown against it within twenty-eight days after service of the order.1

We shall see hereafter,2 that a certificate is necessary previous to enrolment, that everything has been rightly done, consequently an affidavit of service of the conditional order will be required to prove that the twenty-eight days "after service of the order" have expired. The next Order provides a limitation to the period within which a caveat must be prosecuted.3

IV. That where a caveat is entered with the proper officer to stay the signing of the docket of the enrolment of any decree, order or dismission, such caveat shall be prosecuted with effect within twenty-eight days after the docket of such decree, order or dismission shall be left to be signed with the proper officer by the party who entered the same, otherwise such caveat shall be of no force; and the docket of such decree, order or dismission may, immediately after the expiration of the said twenty-eight days, be presented to be signed as if no such caveat had been entered.

V. That no enrolment of any decree, order or dismission shall be allowed after the expiration of five years from the date thereof.

VI. That the Lord Chancellor, either sitting alone or with the Lords Justices, or either of them, shall be at liberty, where it shall appear to him under the peculiar circumstances of the case to be just and expedient, to enlarge the periods herein before appointed for a rehearing, or an appeal, or for an enrolment.

From the language of this Order, it is clear that the period for enrolment will not be enlarged, unless it is proved by the party making the application that there are peculiar circumstances rendering it just and expedient.

Whatever difference of opinion may previously have been entertained on this subject, it seems clear that now no appeal to the House of Lords can take place, unless the decree appealed against has been enrolled.4

1 Webb v. London and Portsmouth Railway Company, 10 Hare, Appx. XVI.; Sherwin v. Shakespeare, 18 Beav. 527.

2 Post, p. 1034.

3 See post, p. 1037, as to the entry of caveats.

Andrews v. Walton, 8 Cl. & Fin. 457, and 6 Jur. 519; Broadhurst v. Tunnicliff, 9 Cl. & Fin. 71. Decrees of a single Justice of the Supreme Judicial Court of Massachusetts, whether final or interlocutory, may be appealed from; and there is no proceeding under the practice in that State, such as the signing and enrolling of a decree in the English Court of Chancery. Genl. Sts. c. 113, § 8, 10; Clapp v. Thaxter, 7 Gray, 386. But that which is equivalent thereto is the entry of a final decree and judgment thereon. 7 Gray, 386.

With respect to the orders or decrees that are capable of enrolment, by the Act to abolish the Office of Master," All orders of the Master of the Rolls or of any Vice-Chancellor, made by him at chambers, shall have the force and effect of orders of the Court of Chancery, and such orders may be signed and enrolled in the same manner."

In the case of M'Gregor v. Topham,3 Sir J. Wigram, V. C., held, that an order refusing a motion for a new trial of an issue devisavit vel non might be enrolled at the application of either party. But mere interlocutory orders, made upon motion or petition, which do not decide any of the merits of the cause, and only relate to the proceedings in it, cannot be the subject of an enrolment. And it is to be recollected that decrees which, although final in their nature, require a further order of the Court to complete them, such as decrees to foreclose or redeem mortgages or decrees nisi, must be perfected before they can be enrolled. Orders under the Windingup Acts may be enrolled.5

A decree may be enrolled by a defendant as well as by a plaintiff, and, subject to the above Orders, it may be done at any time, and notwithstanding an abatement of the suit. Thus, where a decree was made in a cause and cross cause, but was not signed or enrolled till after the death of a party who was plaintiff in the first cause and a defendant in the cross cause, upon a petition being presented to vacate the enrolment, on the ground of its having been made pending the abatement, it was referred to a Master to see whether the signing and enrolling had been irregular, who certified his opinion to be that the decree was not properly signed and enrolled; but Lord Hardwicke, upon exceptions to the Master's 1 15 & 16 Vict. c. 80, § 15.

* In Massachusetts, decrees, interlocutory or final, may be made by a single Justice of the Supreme Judicial Court, subject, however, in either case, to appeal to the full Court. Genl. Sts. c. 113, § 6, 8, 10.

In Vermont, the Supreme Court cannot make a final decree in a suit in chancery, but must remand the case to the Court of Chancery, to be there proceeded with, according to the mandate of the Supreme Court. Downer v. Dana, 22 Vermont, 337. In this State each Judge of the Supreme Court is a Chancellor in his circuit. * 4 Hare, 162.

It seems doubtful how far this is true in the case of a motion refusing an information; Attorney-General v. Mayor, &c. of Wigan, 5 De G., Mac. & Gor. 52.

In re Direct London Railway Company, 1 M. & S. 454. In the case of foreclosure, the Court may however enlarge the time, notwithstanding the enrolment of the decree; Ford v. Wastell, 2 Phil. 591; ante, p. 1017.