appointed

the Court would relieve; but, in order to establish such a case, his adversary must have been guilty of misrepresentation, the burden of proving which, of course, lay on the party who complained.

CHAPTER III.

PROCEEDINGS TO CORRECT OR VARY A DECREE OR A DECRETAL ORDER.

If there is error in a decree or in a decretal order, or if any of the parties are dissatisfied with the judgment pronounced by such decree or order, the Court has provided a remedy according to the state in which the proceedings are at the time when the alleged grievance is sought to be remedied.

1st, Clerical mistakes or errors arising from any accidental slip or omission, may, at any time before enrolment, be corrected upon petition, without the form and expense of a rehearing. 45 N. O. 2dly, Errors not arising from slip or omission may be corrected before enrolment, either by presenting a petition for liberty to rehear the cause before the same jurisdiction pronouncing the decree; or,— 3dly, If the decree was pronounced by his Honor the Master of the Rolls, or by his Honor the Vice Chancellor, by a petition of appeal to the Lord Chancellor; and, 4thly, If their decree has been enrolled, the same must be corrected by an appeal to the House of Lords. 5thly, If new matter is discovered after the decree, and the decree has not been. enrolled, it must be set right by a supplemental

bill, in the nature of a bill of review; and, lastly, If the decree has been enrolled, and it is sought to be corrected on discovery of new matter, or on error apparent, the remedy is by a bill of review.

Each of these proceedings, with the rules and regulations which govern their application, will be considered in their order, together with their effect in suspending the proceedings under the decree or the order sought to be remedied.

The first subject for consideration is the correction of clerical mistakes, or slips in a decree, or in a decretal order. By the 45 N. O. 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 enrolment, be corrected upon petition, without the form and expense of a rehearing. This order appears rather declaratory of an existing practice, than to originate a new one.

The 2d of Lord Bacon's Ordinances provided that, in case of miscasting, (being a matter demonstrative,) a decree might be explained and reconciled by an order, without a bill of review; not understanding by miscasting any pretended mis-stating or misvaluing, but only error in the auditing or numbering. Beames, 3. In Wallis v. Thomas, 7 Ves. 292, an omission in a decree of the common direction to examine upon interrogatories, was supplied on a motion made upon notice. In Pickard v. Mattheson, 7 Ves. 293, which was a creditor's suit against executors, the usual direction for an account of the personal estate was supplied without rehearing. In Newhouse v. Mitford, 12 Ves. 456, a reference to take an account as to dividends omitted in the decree, was, by consent, supplied on motion. In Weston v. Haggerston, Coop. 134, after an enrolment. of the decree, errors in the casting, producing an erroneous balance, were allowed to be corrected without a bill of re

view; and in Lane v. Hobbs, 12 Ves. 458, the Court went so far as to vary the decree which directed money to be paid in, which had already been paid in, by leaving out such direction; although in Brookfield v. Bradley, 2 S. & S. 65, where sums of money reported due from executors had been paid into court, and by mistake in the order on further directions those sums were again ordered to be paid in, the Court refused to make an order upon a petition to rectify the mistake, and said the cause must be reheard. It was observed that Weston v. Haggerston, Cooper, 134, applied only to errors of figures apparent upon the face of the decree; but that in this case the cause must be reheard, as it would not only be necessary to strike out the order of payment by the defendant, but to insert new directions upon the corrected fact. In Hawker v. Buncombe, 2 Madd. 391, a mistake having been made in a decree, by misnaming the defendants, and the accountant-general having, in consequence, entered an account in wrong names, an order was made upon motion that the registrar should alter the decree, and that the accountant-general should also alter the accounts in his books. So in Tomlins v. Palk, 1 Russ. 475, the correction of a clerical error in a decree passed and entered was allowed.

By the cases cited it appears that application to correct clerical mistakes, or accidental slips, were allowed to be made on motion; but in Gray v. Dickinson, 4 Madd. 464., it was held that all applications to rectify a decree must be made by petition, which assimilated the practice to that declared by the 45th N. O.*

In proceeding under the 45th N. O., the petition should

The cases cited, though before the New Orders, will assist the reader in the construction to be put upon the 45th N. O.

state sufficient of the ordering part of the decree or decretal order to enable the Court to judge of the effect of the error sought to be corrected, and also should state the correction proposed to be made in the decree.

CHAPTER IV.

REHEARING AND APPEAL TO THE LORD
CHANCELLOR.

If a party feels himself aggrieved by a decree or by a decretal order, and seeks to correct or vary the same as to errors not arising from a slip or clerical mistake, and the decree or decretal order has not been enrolled, he must apply either by a petition of rehearing, Nott v. Hill, 1 Vern. 167., or by a petition of appeal. He cannot make any substantial addition to a decree on motion excepting by consent. Willis v. Parkinson, 3 Swanst. 233. A decretal order, although made on motion as in a foreclosure suit under the statute, cannot be discharged on motion. Cadle v. Fowle, 1 Bro. C. C. 514. The practice after a decision by one Court, instead of rehearing or appealing to institute a suit in another Court for the same object, is highly objectionable and disapproved of by the Court.

A rehearing, strictly speaking, and as distinguished from an appeal, is the hearing over again before the same judge or jurisdiction a cause already argued and decided, but as an appeal from the Vice Chancellor, or from the Master of the Rolls to the Lord Chancellor, is regarded as a re

hearing, and is governed by the same rules; they may conveniently be considered together.

Neither a petition of rehearing nor of appeal can be presented to alter the minutes of a decree. In Robinson v. Taylor, 1 Ves. 44., the Court refused to allow a cause to be re-argued upon a petition to alter the minutes, and ordered it to stand over with liberty for the party to apply for a rehearing; and in Taylor v. Popham, 15 Ves. 72., it was held that an order of a preceding Chancellor could not be reheard upon minutes, but that the order must first be drawn up. Neither can a decretal order be discharged upon motion though made by consent, and surprise alleged. Anon. 1 Ves. 93.

As, on the one hand, a decree or order must be passed and entered before either a petition of appeal or rehearing can be regularly answered, so on the other it must be answered before the decree or decretal order has been enrolled, since, after enrolment, the decree can only be varied by a bill of review, or a bill in the nature of a bill of review, or by an appeal to the House of Lords.

A petition of rehearing or of appeal is the only proper mode of correcting a decree not enrolled; and if, on a cause coming before a judge either on further directions or petition, or in any other shape, it should become apparent that the decree had been made upon an erroneous principle, it is not competent to the judge then to alter the decree or decretal order, but the same must be corrected on a petition of rehearing or of appeal. Taylor v. Popham, 15 Ves. 76.

In Brackenbury v. Brackenbury, 2 J. & W. 391., the decree had ordered an issue, but did not direct that an outstanding term should not be set up. On the trial the plaintiff set up an outstanding legal estate, and the defendant (the plaintiff at law) was nonsuited. An order was