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In general, where a cause has been brought on for hearing upon bill and answer, and the plaintiff fails in making out his case for want of a full admission of it by the answer, the Court will permit him (if he desires it) to reply, on paying down five pounds,1 and such other costs as the Court shall think fit, for the day, within four days after such hearing.2 Thus, where a bill was brought against three several executors of three joint factors, one of whom swore he believed and hoped to prove" that the plaintiff was satisfied his demands, whereupon the plaintiff replied against the other two, and brought the cause on by bill and answer against the third, it was insisted that the plaintiff could have no decree for thus bringing on his cause; for though the defendant had not directly sworn by his answer that the money was paid, yet as he had sworn he believed and hoped to prove it paid, and the plaintiff by not replying had precluded him from the benefit of his proof, what the defendant stated upon his belief must be taken to be true, and the plaintiff was ordered to pay the costs and left at liberty to reply to the answer of the other defendants.

If a cause, instead of being ordered to stand over for want of parties, is struck out of the paper, so that it is necessary again to set it down and to serve fresh subpoenas to hear judgment, the defendant, if the cause is again set down, is, as we have seen, to be allowed the taxed costs occasioned by the first setting down, although he do not obtain the costs of the suit.1

1 This was formerly the amount of costs of the day, but they are now increased to 10. 35th Ord. 1828, ante, p. 757.

Rogers v. Mitchell, 41 N. Hamp. 160.

Barker v. Wild, 1 Verm. 140.

• Ante, p. 993.

CHAPTER XXV.

OF DECREES.

SECTION I. General Nature of Decrees.

A DECREE is the term applied to a sentence or order of a Court of Equity, in the same manner as the word judgment is used with reference to a Court of Law.1

It is either interlocutory or final: in strictness a decree is interlocutory until it is signed and enrolled;2 but the term is more

1 A decree in Equity is for most purposes, if not for all, of as high a dignity and character as a judgment in a Court of Law. Story Eq. Pl. § 790; Hopkins v. Lee, 6 Wheat. 109; Wash. Bridge Co. v. Stewart, 3 Howard (U. S.) 413; Crandall v. Gallup, 12 Conn. 365; Calkins v. Evans, 5 Indiana, 441. It is equivalent to a judgment at law as to the distribution of assets. Thompson v. Brown, 4 John. Ch. 636; Woddrop v. Price, 3 Desaus. 206; Blake v. Heyward, 1 Bailey Eq. 208. See Phillips v. Thompson, 3 Stew. & Port. 369.

A decree cannot be incidentally assailed, but is conclusive as to the rights and liabilities of the parties until reversed by the appellate Court, or impeached by an original bill for fraud in obtaining it, or attacked for palpable error, by bill of review. Sanders v. Gatewood, 5 J. J. Marsh. 328; Watson v. Williams, 8 Ired. Eq. 232; Gardiner v. Miles, 5 Gill, 94; Hunter v. Hutton, 4 Gill, 115. The conclusiveness of a decree is not affected by any difference between its being obtained by consent or by a decision of the Court on the legal principles involved. ford v. Thorn, 1 Stockt. (N. J.) 702.

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A decree authorizing a sale of all the real estate of a party, is good, as evidence, against all the world, so far as the transfer of the right of such party to another, or to a purchaser under such a decree, is concerned. Ryder v. Inverarity, 4 Stew. & Port. 14.

All persons who are parties or privies to a decree are bound by it. Gould v. Stanton, 16 Conn. 12; Young v. Henderson, 4 Hayw. 189; M'Whorter v. Standifer, 2 Porter, 519; Marrigauld v. Deas, 1 Bailey, Eq. 284; M'Call v. Harrison, 1 Brock. 126. But none others. Brown v. Wincoop, 2 Blackf. 230; Canby v. Ridgway, Halst. Dig. 175; Dale v. Roosevelt, 1 Paige, 35; Garnett v. Mason, 6 Call. 308; Este v. Strong, 2 Ohio, 404; Moseley v. Cocke, 7 Leigh, 224; Griswold v. Jackson, 2 Edw. Ch. 461; Matthews v. Roberts, 1 Green Ch. 338.

The rights of third persons, not parties to a suit, are not affected by the decree therein, although such decree is binding and conclusive with respect to the subject-matter on which it acts. Beers v. Broome, 4 Conn. 247; Bailey v. Robinson, 1 Grattan, 4; McCall v. Harrison, 1 Brock. 126; Buford v. Bucker, 4 J. J. Marsh. 551. But see Goss v. Singleton, 2 Head, (Tenn.) 67.

2 For. Rom. 183.

generally applied to decrees, in which some inquiry as to matter either of law or of fact is directed preparatory to a final decision.1

Since the abolition of the Master's office and other recent changes in the forms and practices of the Court, the old distinction between final and interlocutory decrees has almost vanished. Orders on motions in former times were always deemed interlocutory,2 but now, as we have seen, decrees or decretal orders may be made on motions which are, to all intents and purposes, final in their effect. Moreover, although, according to the existing practices, it frequently happens that some of the most important questions of the cause are left undetermined upon the first hearing, and accounts or inquiries only are directed preliminary to a final decree, yet even in such cases the form of the first decree is "that the further consideration of the cause be adjourned," and when the cause comes on again it is set down " for further consideration." 3

1 See Thompson v. Peebles, 6 Dana, 391; Dunbar v. Woodcock, 10 Leigh, 629; Teaff v. Hewitt, 1 Ohio (State) 511. An order in an Equity suit directing the trial of a question of fact by a jury is an interlocutory order; and in Massachusetts this order may be made by the Supreme Judicial Court when held by a single Judge. Eames v. Eamės, 16 Pick. 141; Ward v. Hill, 4 Gray, 593, 595. See also Genl. Sts. c. 113, s. 6. And such order may be set aside at a subsequent term of the Court. Dabbs v. Dabbs, 27 Alabama, 646. But in Massachusetts the order for an issue is not open to exception. Crittenden v. Field, 8 Gray, 626; Ward v. Hill, 4 Gray, 593.

* See Ogilvie v. Knox. Ins. Co. 2 Black (U. S.) 539.

Seton on Decrees, last edition, General Order, 4th March, 1853. In the United States Chancery Courts where the right to appeal is limited to final decrees, the words "final decrees" have not been held to their strict and technical sense, but a more liberal construction has been given to them. Fongay v. Conrad, 6 Howard (U. S.) 203. Thus, in the case of Whiting v. Bank of U. S., 13 Peters, 15, it was held, that a decree of foreclosure and sale of mortgaged premises was a final decree, and the defendant entitled to his appeal without waiting for the return and confirmation of the sale by a decretal order. And this decision is placed by the Courts upon the ground, that, the decree of foreclosure and sale was final upon the merits, and the ulterior proceedings but a mode of executing the original decree. The same rule of construction was acted on in Michoud v. Girod, 4 Howard (U. S.) 503.

In Forgay v. Conrad, 6 Howard (U. S.) 204, Taney, C. J., said: "When the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the plaintiff, or directs it to be sold, or directs the defendant to pay a certain sum of money to the plaintiff, and the plaintiff is entitled to have such deeree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to the Supreme Court, although

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Until recently it was not usual for the first hearing of a cause to be final, or to attempt in terms to conclude the case.

If any matter of fact was strongly disputed, a feigned issue was directed to a Court of Law.

Even if the facts were, in the opinion of the Court, sufficiently clear, but a difficult point of pure Law, as distinguished from Equity, arose, it was the practice to direct a case for the opinion of a Court of Common Law. In that case the final decision was reserved until after the trial of the issue, or the delivery of the opinion of the Judges upon the case. The tendency of modern changes has been most materially to diminish the number of delays of this description. The practice of sending cases for the opinion of a Court of Common Law is wholly abolished, and a Court of Equity has full power to determine any question of Law which, in the judgment of the Court, shall be necessary to be decided previously to the decision of the equitable question at issue between the parties. And though the power of directing actions at Law still remains, yet there are many reasons why it is more sparingly exercised than in former times.

By the 62d section of the 15 & 16 Vict. c. 86, it is enacted, that "In cases where, according to the present practice of the Court of Chancery, such Court declines to grant equitable relief until the so much of the bill is retained in the Circuit Court as is necessary for the purpose of adjusting by a further decree the accounts between the parties pursuant to the decree passed." "This rule of course does not extend to cases where money is directed to be paid into Court, or property to be delivered to a receiver, or property held in trust to be delivered to a new trustee appointed by the Court, or to cases of a like description. Orders of that kind are frequently and necessarily made in the progress of a cause. But they are interlocutory only, and intended to preserve the subject-matter in dispute from waste or dilapidation, and to keep it within the control of the Court until the rights of the parties concerned can be adjudicated by a final decree."

1 In Massachusetts, if, upon making an interlocutory decree or order, the Justice is of opinion that it so affects the merits of the controversy that the matter ought to be determined by a Court of Law before further proceedings are had, he may report the question for that purpose, and stay all further proceedings except such as are necessary to preserve the rights of the parties. Genl. Sts. c. 113, s. 12. And it is also provided that "the Justice by whom a case is heard for a final decree may reserve and report the evidence and all questions of law therein, for the consideration of the full Court, and thereupon like proceedings shall be had as in appeals from final decrees." Genl. Sts. c. 113, s. 15.

2 15 & 16 Vict. c. 86, s. 61.

4 De G. Mac. & Gor. 732.

See Trustees of the Birkenhead Docks v. Laird,

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legal title or right of the party or parties seeking such relief shall have been established in a proceeding at Law, the said Court may itself determine such title or right without requiring the parties to proceed at Law to establish the same."

Before this section was enacted, in a great number of cases where the equitable remedy was contingent upon a legal right, and the legal right was disputed, the Court of Chancery used to decline making any order until the legal right had been established in a Court of Law; and when to preserve the property in dispute, or to prevent any immediate injury, an injunction was granted in the first instance, it was an invariable rule that some provision should be made in the order for putting the matter in the course of legal investigation. Now, in many cases of this description, parties are able to apply either to a Court of Equity or to a Court of Common Law, with a certainty that either tribunal, whichever they may select, is competent to give complete relief.1 It must be recollected that in cases involving the decision of any purely legal question, the presence of a Common Law Judge may be obtained.2

Sometimes the object of the suit is a commission for a partition of lands, or so settle their boundaries; in such cases, also, the first decree is not generally final, the further directions, or further consideration as it is now termed, being reserved till after the commission has been returned. But the most usual ground for not making a perfect decree, in the first instance, is the necessity which frequently exists for making inquiries, or to take accounts or sell estates, and adjust other matters which are necessary to be disposed of, before complete decision can be come to upon the subject-matter of the suit.1

115 & 16 Vict. c. 76, s. 226.

14 & 15 Vict. c. 83, s. 8; Deerhurst v. Jones, 16 Jur. 988.

* In Massachusetts, there is no general jurisdiction in equity to make partition of lands, there being a complete and adequate remedy at common law; but persons who are interested as joint tenants, tenants in common, or otherwise, in any mill privilege, water right, or other incorporeal hereditament, may be compelled to divide the same, either by suit in Equity, in the Supreme Judicial Court, or in the manner provided for the division of land in Courts of Common Law. Genl. Sts. c. 136, s. 77. See Hodges v. Pingree, 10 Gray, 14.

• A decree authorizing an executor to sell the lands of his testator, for the payment of debts, and to report his proceedings in execution thereof to the Court, is not final, but an interlocutory decree. Goodwin v. Miller, 2 Munf. 42. It is said by Judge Spencer, in Jaques v. Method. Epis. Church, 17 John. 558, that no case can be found in which a decree, directing a reference to a Master, or a

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