having been duly published and read, pursuant to the late Act of Parliament in that case made and provided, as by affidavit of H. M. and the London Gazette of the 3d day of June 1746, appeared; and the said defendant not having appeared to the plaintiff's bill, it was, by an order of the 20th day of February last, ordered that the plaintiff's Clerk in Court should attend with the record of the plaintiff's bill, in order to have the same taken pro confesso against the said defendant Walter Hendley; and the Clerk in Court for the plaintiff now attending therewith accordingly. Upon reading the said order of the 20th day of February last, the affidavit of J. T. and the said Gazette, and an order of the 27th day of May, 1746, and the affidavit of H. M. His Honour doth think fit, and so order and decree that the plaintiff's bill be taken pro confesso (2) against the defendant Walter Hendley. Powys v. Hendley, M. R. 6th March, 1747. Reg. Lib. B. 1746. fol. 200.

For order for appearance under the statute. See Equity Draftsman, 608.

For the like order in the Exchequer. See 1 Fowl. 236.

For orders for attendance of Clerk in Court, with the record of the bill. See Hand's Pract. 40. Equity Draftsman, 608.

For order in the Exchequer to set down the cause. See 1 Fowl.

238.

For order to appoint Clerk in Court under the statute. See Equity Draftsman, 591. 607.

For like order in the Exchequer. See 1 Fowl. 231.

For order for making decree absolute under the statute after service. See Equity Draftsman, 620.

For decrees for taking bill pro confesso, not under the statute See Equity Draftsman, 652, 653.

For decree taking bill pro confesso as to one defendant only. See Equity Draftsman, 653.

For order in the Excheqruer for taking bill pro confesso not under the statute. See 1 Fowl. 222.

NOTE.

(1) Where there is only one defendant the bill may be ordered to be taken pro confesso upon motion; but if there are more defendants

than one, the cause must be set down. 372. Lewis v. Marsh, 2 S. & S. 220.

Seagrave v. Edwards, 3 Ves.

(2) Decree pro confesso.

In Hamilton v. Houghton, 2 Bligh. 184. it is said by Lord Redesdale, that it is the business of a party taking a decree pro confesso to see that it is right. But in Geary v. Sheridan, 8 Ves. 192. it was held, that the decree pro confesso is pronounced by the Court upon hearing the pleadings. And see Knight v. Young, 2 V. & B. 186. Hawkins v. Croke, Mos. 386. S. C. 2 P. W. 556. Johnson v. Desmineere, 1 Vern. 224. Otherwise in case of decree by default, S. Cs. And see Decree by Default, No. I. note (2), ante.

In Howell v. Lord Coningsby, 2 Eq. Abr. 280. pl. 8. (which was before the statute 5 Geo. 2. c. 25.) it was doubted whether the decree should not be nisi only in the first instance. But in Landon v. Ready, 1S. & S. 44. (which was not within the statute, the defendant having appeared) the Vice-Chancellor held, that whether before or after appearance, the decree was absolute in the first instance.

Setting aside Decree pro confesso.

An order for taking the bill pro confesso may be discharged on motion. See Williams v. Thomson, 2 Bro. 280. S. C. 1 Cox, 413. And see Attorney-General v. Young, 3 Ves. 209.

But it will not be discharged merely on the ground of an answer being put in. Williams v. Thomson, supra. And see Heyn v. Heyn, Jac. 50.

Nor upon payment of costs. Hearne v. Ogilvie, 11 Ves. 77. Nor upon an affidavit of the defendant as to his own imbecility. Knight v. Young, 2 V. & B. 184.

After a decree pro confesso, the defendant will not be let in generally, as if no decree had been made. Bolton v. Glassford, cited 2 V. & B. 186.

After a decree pro confesso for an account, the defendant was allowed to attend the Master, upon payment of costs. Heyn v. Heyn, Jac. 49.

In Maynard v. Pomfret, 3 Atk. 468. after a decree for an account taken pro confesso upon a sequestration, the Court refused to discharge the sequestration, but kept it on foot as a security for what

should be found to be due. But in Heyn v. Heyn, supra, the Court, under the like circumstances, discharged the sequestration.

For the mode of setting aside a decree under the statute. See statute 5 Geo. 4. c. 25. s. 4, 5, 6, 7.

A decree not under the statute, like other decrees, cannot be impeached by original bill. Ogilvy v. Hearne, 13 Ves. 563.

DECREES BY CONSENT.

No. I.

DECREE BY CONSENT.

This Court doth by consent order &c. [See Decree for Reference to Arbitration, No. II. post.]

For orders by consent making an agreement between the parties an order of the Court. See Hand's Pract. 234. 2 Fowl. 416. Equity Draftsman, 614.

For order for making an award an order of the Court. Sec 2 Fowl. 417.

NOTE.

Decree by Consent.

Sometimes the decree is stated to be by consent generally.

Sometimes by consent of counsel. Collins v. White, Appendix (1). Robinson v. Harrington, Appendix (2).

Sometimes by the consent of the Clerks in Court. Evans, Decrees respecting Tithes, No. II. ante.

Richards v.

Sometimes by the consent of the parties, or their Clerks in Court, testified by their signing the Registrar's book. Collins v. White, supra. Robinson v. Harrington, supra.

Setting aside Decree by Consent.

A decree or order by consent of the counsel for the parties cannot be set aside either by rehearing or appeal. Bradish v. Gee, Ambl. 229. Harrison v. Rumsey, 2 Ves. 488. Belt's Supp. 413. Toder v. Sansam, 7 Bro. P. C. 244. Downing v. Cage, 1 Eq. Abr. 165. 4. Norcotv. Norcott, 7 Vin. 398. 13. Windham v. Windham, Freem. 127.

In Anon. 1 Ves. jun. 93. the Lord Chancellor seemed to think that it might by a bill of review. But in Webb v. Webb, 3 Swan. 658. a bill of review to set aside a decree by consent was dismissed by Lord Nottingham. And see Smith v. Turner, 1 Vern. 274.

But if the decree was obtained by fraud, relief may be had against it on an original bill. Bradish v. Gee, supra, and cases there cited. And see Harrison v. Rumsey, supra.

If the party did not in fact consent, his remedy is against his counsel. Bradish v. Gee, supra. Harrison v. Rumsey, supra. Counsel must determine for themselves on their authority to consent. Mole v. Smith, 1 J. & W. 673.

Where counsel for the same party were instructed by different solicitors, the case was ordered to stand over in order that the authority of the solicitors might be verified by affidavit. Butterworth v. Clapham, 1 J. & W. 673, note.

That counsel for an infant heir may decline taking an issue. See Levy v. Levy, 3 Mad. 245.

An agreement to submit to such decree as the Court should make, and that neither party should appeal, though made an order of the Court by consent, will not prevent a rehearing. Buck v. Fawcett, 3 P. W. 242. Whether such an agreement is not contrary to the policy of the Court, Q. S. C.

It seems that consenting to an order consequential on a decree does not prevent a rehearing. Wood v. Griffith, 19 Ves. 551. S. C. 1 Mer. 38.

But a party taking a step inconsistent with the order is precluded. Bernal v. Marquis of Donegal, 3 Dow. 146.

In the case of infants the Court does not usually make a decree by consent, without a previous enquiry whether it will be for their benefit. Wall v. Bushby, 1 Bro. 488.

But if made without that inquiry, the infants are bound. S. C. And see Anon. Freem. 127.

After a hearing by consent a cause may be reheard. See Butterfield v. Butterfield, 1 Ves. 133. Belt's Supp. 83. Hibbert v. Hibbert, 3 Mer. 682.

APPENDIX (1).

Decree by Consent.

His Lordship by consent of the plaintiff Collins and the defendant White, signified by their signing the Registrar's book, and of Mr. Green of counsel for the defendant Evans, doth order that all the matters in difference in these causes, be referred to the arbitration and determination of Randal Wilbraham, Esq. &c. Collins v. White, L. C. 27th January 1747. Reg. Lib. A. 1746. fol. 186.