FORMS OF DECREES,

&c. &c.

DECREES GENERALLY.

The judgments of the Courts of Law are usually simple in their form, as that the plaintiff do recover his seizin, term, &c. (1)

But decrees of Courts of Equity, from the nature of the relief given by them, and the number of parties often interested in it, are necessarily more complicated. (2)

In the separate branches, however, of equitable jurisdiction, they are not without uniformity; and upon this ground are frequently referred to as regulating the practice of the Court. (3)

With this view, and with a view to the preservation of that uniformity, a collection of the common forms of decrees, and of the orders connected with them, may not be without use.

It may also be useful with a view to framing bills, the prayer of the bill being that part upon which the frame of it principally depends, and the decree being obviously the best guide to the prayer.

What follows is intended rather as an essay towards such a collection than as a complete one.

NOTES.

(1) The judgment in a writ of right, is, that the plaintiff recover his seizin. See 3 Bl. Com. Appendix, No. 1. In ejectment that the plaintiff recover his term, &c. lb. No. 2. In debt, that the plaintiff recover his debt, &c. Ib. No. 3. In assumpsit, covenant,

B

&c., that the plaintiff recover his damages, &c. See Tidd's Practice, 938. And see Tidd's Appendix, title " Judgments."

(2) See 1 Wooddeson's Lectures, 203.

(3) See, among other instances, what is said by the Master of the Rolls in Crickett v. Dolby, 3 Ves. 13. and by the Lord Chancellor in Willan v. Willan, 19 Ves, 593. and as to the general utility of consulting decrees, see what is said by the Lord Chancellor in Milnes v. Slater, 8 Ves. 303.

INTERLOCUTORY DECREES.

Decrees are either interlocutory or final. 3 Bl. Com. 452. In strictness, a decree is interlocutory until it is signed and enrolled. See Gilb. For. Rom. 183.

But ordinarily a decree is termed interlocutory where it is pronounced for the purpose of ascertaining matter of law or of fact previous to a final decree. See 1 Newl. Pract. 322.

In interlocutory decrees the consideration of the particular question to be determined, or of further directions generally, is reserved by the decree. See 1 Newl. Pract. ib. and Reservation of further Directions, post. And the further hearing is termed upon Further Directions or upon the Equity Reserved.

It seems that a preliminary direction at the hearing with a view to inquiry is not properly a decree, but a decretal order. See Horwood v. Schmedes, 12 Ves. 315.

Decrees or decretal orders are also termed interlocutory where they are made on motion before the regular hearing. Upon the ground that the decree is interlocutory until enrolment, rehearings are permitted. Gilb. For. Rom. 183.

And upon this ground, evidence is permitted to be read upon a rehearing, which was not read on the original hearing. Wright v. Pilling, Pre. in Chan. 496. S. C. Gilb. Rep. 151. And see Needham v. Smith, 2 Vern. 464. Hedges v. Cardonnel, 2 Atk. 408. Cunyngham v. Cunyngham, Ambl. 90. Bulkeley, 10 Ves. 236. Huddleston v. Briscoe, 11 Ves. 593. Buckmaster v. Harrop, 13 Ves. 458.

Dashwood v. Lord

Williams v. Goodchild, 2 Russ. 91. Though not upon an appeal. Williams v. Goodchild, supra. Addison v. Hindmarsh, 1 Vern. 442.

So upon a rehearing, exhibits are permitted to be proved
Gilb. For. Rom. 183. Walker v. Symonds, 1

viva voce.

Mer. 37, note.

And leave may be obtained for the proof of new matter. Gilb. For. Rom. 183. White v. Fussell, 1 V. & B. 153. Williamson v. Hutton, 9 Price, 194. Williams v. Goodchild, 2 Russ. 91. Wyld v. Ward, 2 Younge & Jervis, 381.

But new matter cannot be put in issue. Thomson v. Walter, Pre. in Chan. 295. Or a new case made. Wood v. Griffith, 1 Mer. 35. S. C. 19 Ves. 550.

See Propositions on this subject-Introductory part of Decrees, post.

Interlocutory decrees or orders cannot be pleaded. Senhouse v. Earl, 2 Ves. 450. Sheriff v. Sparkes, 1 West, 130. Brandlyn v. Ord, 1 Atk. 571. S. C. 1 West, 512.

At law a writ of error can only be brought on a final judgment; but in equity an appeal lies from interlocutory orders. 3 Bl. Com. 55. Wall v. Attorney General, 11 Price, 668. (1)

An appeal, however, cannot be brought from an order to show cause not made absolute. Nagle v. Foot, 4 Bro. P. C. 368. And see Decrees by Default, post.

The following Propositions, with a view to extend the power of the Court in pronouncing interlocutory decrees or decretal orders upon motion, are among those subjoined to the Report of the Commissioners upon the practice of the Court of Chancery:

Proposition 137.-That wherever after answer it is apparent from the pleadings that some certain decree must necessarily be made at the hearing, there, without further proceeding being had, the court may in its discretion make an order to the effect of the decree, which would be made at the hearing if the cause were regularly prosecuted upon the summary application of any party to the suit, or of any person directly interested in the suit, although not a party thereto, as a creditor or legatee where the suit is for the administration of assets.

Proposition 138.-That when all the answers in a cause are filed, it shall be competent to the court, if it shall deem it expedient, by interlocutory order made upon the motion of any party, to direct any inquiry as to the matter of the cause, or any accounts in the cause, in order that pending the making of such inquiry, or the taking of such accounts, the plaintiff may proceed in the preparing the cause for hearing; and that if the Master's report shall be made before the cause shall come on to be heard, it may at the same time be heard upon the subject of the said report, as well as upon the other matters in issue.

NOTE.

(1) For a protest against an appeal from an interlocutory order. See Grenville v. Elwes, 1 Chandler's Debates, House of Lords, 103. By the civil law no appeal lies but from a definitive sentence, or what is termed "Gravamen Irreparabile," but by the canon law (as in equity), an appeal lies from any sentence. See Exp. Blunt, 1 Atk, 295. S. C. 1 West, 27.

The rule of the civil law is adopted in the Admiralty Courts, S. C., and that of the canon law in the Ecclesiastical Courts.