Decrees consist of the Introductory Part and the Ordering

Part.

5

No. I.

ORIGINAL DECREE.

INTRODUCTORY PART. (1).

John Southwood, plaintiff Grace

Fry and Peter Fry, defendants. (2)

"Lord

THIS cause coming on the 4th instant, [In margin as also on this present day, to be heard and of decree]debated before the Right Honourable the Chancellor" Lord High Chancellor (3), in the presence

of counsel learned on both sides, the substance of the plaintiff's bill appeared to be that, &c. Therefore that the defendants, or one of them, may, &c. and to be relieved is the scope of the plaintiff's bill. Whereto the counsel for the defendants alleged that they by their answer, &c. (4) Whereupon and upon debate of the matter, and hearing the will of P.D., dated the 12th day of June, 1710, and the defendants' answers, and the proofs (5) taken in this cause read, and of what was alleged by the counsel on both sides, his Lordship doth think fit, and so order and decree (6) that, &c. Southwood v. Fry, L. C. 6 April. 1747. Reg. Lib. B. 1746. fol. 364.

And see Harr. 327.

NOTES.

(1) The decrees which follow are taken from the entries in the Registrar's books, kept in the Report Office. The decrees are entered alphabetically according to the names of the plaintiffs. The books marked A. contain the entries from A. to K. inclusive. Those marked B. contain the rest. The year begins with Michaelmas Term; so that, according to the modern computation, the date of the decree does not correspond with that of the book, except in Michaelmas Term.

The folios in the books are numbered, but not the pages.

(2) The parties should have the same descriptions as in the bill. Curs. Canc. 359.

(3) If the cause is heard upon bill and answer, it should be so stated. See Harr. 328.

(4) The Recital of the Pleadings.

Anciently the pleadings were interwoven with the directions; more recently the entire statement was placed first, and the order afterwards. See Mr. Walker's evidence, Report of the Commissioners upon the practice of the Court of Chancery, Appendix, A. p. 322.

Decrees ought to be drawn up as short as may be with convenience, and not to recite the pleadings largely, but only the sum of them briefly. See Curs. Canc. p. 353.

The following orders have been made on this subject:

By the orders of the Lords Commissioners, A. 1649, Beames Appendix, 501. It is ordered that no decree shall recite the bill, answer, pleadings, or depositions, or any of them verbatim; but only the short state of the matter, and the decretal order, and the opinion and judgment of the Court.

And by an order of Lord Hardwicke, Beames, 381. It is ordered that in original decrees and orders made on hearing of causes, the recitals previous to the exhibits read, be of the substance and scope only of the pleadings, tending to the points in controversy upon which the decree is founded, and be made in the most concise manner, and not to contain any recitals immaterial to the points in question.

The following observations as to the recital of the pleadings, are contained in the Report of the Commissioners upon the Practice of the Court of Chancery.

،، We have taken some evidence, and have had much consideration as to the propriety of establishing a shorter mode of drawing up decrees than is now in use. We find that in the opinion of very many experienced persons, the advantage of having the nature and substance of the case set forth in the document which contains the decision, overbalances any evil which results from its length; and we do not propose any new rule as to the form of decrees, although we wish strongly to enforce the propriety of greater attention than appears now to be paid to the terms of Lord Hardwicke's order in this behalf. See Report, p. 18.

For further, as to recitals. See Further Directions, post.

By the orders of the Court of Exchequer, every order and decree

is to be drawn up as short as with conveniency they can be, without reciting the former orders and pleadings at large. Rules and Orders of the Exchequer, 32.

Effect of the Recitals of the Pleadings.

Previous to the enrolment of the decree the parties are not bound by the recitals of the pleadings, Gilb. For. Rom. 210.

But after the enrolment, which is taken from the record of the bill and answer, they are bound, Ib.

Where the decree is given in evidence at law, it seems to have been held, that proof of the bill and answer might be dispensed with, where they were recited at length in it. See Com. Dig. "Evid." C, 1. Phillipps on Evidence, 393. Peake's Evidence, 70. and

note.

And see Exemplification of Decree, post.

(5) The Recital of Evidence.

See orders of the Lords Commissioners, A. 1644. ante.

The recital of the evidence read is general, as well as that of the reading of the answer.

In Brend v. Brend, 1 Vern. 214. The Lord Chancellor said that he would not allow of this practice, but that the facts that were proved, and allowed by the Court as proved, should be particularly so mentioned in the decree; and see Bonham v. Newcombe, 1 Vern. 216.

But the practice has continued.

See effect of the recitals of the evidence, post.

The following propositions on this subject are among those subjoined to the Chancery Report:

Prop. 183. That all decrees shall contain a precise statement of the particular evidence read and used, distinguishing therein from folio to folio the part of the answer or deposition which was read and used, and that it be the duty of the registrar to make a note in his book of all evidence which is tendered, whether it be received or rejected.

The object of this proposition is to give effect to that which precedes it (see explanatory paper subjoined to the report, p. 114.), which is as follows:

Prop. 182. That all appeals from the decisions of the Master of the Rolls and Vice-Chancellor to the Lord Chancellor shall be heard and disposed of upon the same evidence as was used or read

before the Master of the Rolls and Vice-Chancellor, and upon no other or additional evidence, unless the appeal be on account of the rejection or admission of evidence.

In the Exchequer it is the practice (though not invariably) to state the evidence read specifically in the decree.

Effect of the Recitals of the Evidence.

Upon a demurrer to a bill of review, the parties are bound by the recitals of the evidence contained in the decree. Combes v. Proud, Freem. 182. S. C. 2 Eq. Abr. 174. And see Collwell v. Child, Freem. 154.

But not, it seems, unless the evidence is particularly stated. Bonham v. Newcomb, 1 Vern. 216.; and see Brend v. Brend, 1 Vern. 214.

And after a demurrer overruled, the cause is equally open as upon a rehearing. Catterall v. Purchase, 1 Atk. 290. S. C. 1 West, 447.

In O'Brien v. Connor, 2 Ba. & Be. 154. it is said, that if there were a fact misunderstood by the Court, and not introduced into the decree as a fact proved in the cause, that might be a ground for an appeal.

But in Lodge v. Manby, House of Lords, 9th and 20th June, 1825, ex relatione Mr. Mathews, on appeal from the Court of Exchequer, the decree having omitted to notice evidence, which, though tendered and relied on by the respondent, had not been actually read, to save the time of the Court, the House of Lords directed the appeal to stand over, in order to give an opportunity to apply to the court below to correct the omission; and afterwards, upon the consent of the appellant to waive the objection, dismissed the appeal with 504. costs only, and refused full costs, on the ground of the omission in the decree. Errors in the recital of the evidence may be corrected on a rehearing. See Combes v. Proud, supra. Catterall v. Purchase, supra. See Sir John Eden v. Earl of

So on a motion to rectify minutes. Bute, 7 Bro. P. C. 204.

Where the evidence had not been in fact read or relied on, an order on a motion to rectify minutes for entering the evidence as read was reversed on appeal, but leave was given to rehear the cause. S. C.

(6) Grounds of Decree.

Formerly the Court, in some instances, directed the reasons for its decree to be specially entered by the registrar. See Maynard v.

Moseley, 3 Swan. 653. Onions v. Tyrer, 1 P. W. 343. Gibson v. Kinven, 1 Vern. 67. note.

But this practice was not usual, and has since become very uncommon. See Ex parte Earl of Ilchester, 7 Ves. 373.

Nevertheless the utility of it has been noticed in the like instances. See Bax v. Whitbread, 16 Ves. 24. Gordon v. Gordon, 3 Swan. 478. And it has been sometimes adopted. See Gordon v. Gordon, supra. Jenour v. Jenour, 10 Ves. 573.

By Lord Bacon's orders, 44. Beames, 22. In special orders the registrars are directed to set down the reasons which moved the Court to vary from the general rule.

Declaration of Rights of Parties.

Where the suit seeks a declaration of the rights of the parties, the ordering part of the decree should be prefaced by it. See Jenour v. Jenour, 10 Ves. 568.

No. II.

FURTHER DIRECTIONS-INTRODUCTORY

PART.

This cause coming on the 30th day of March last to be heard and debated before the Right Honourable the Master of the Rolls, in the presence of counsel learned on both sides, upon opening and debate of the matter, and hearing the settlement made on the defendant's marriage with her late husband, dated the 15th of December, 1732, read, and what was alleged by the counsel on both sides, his Honour ordered that, &c. And all the parties were to be paid their costs, &c. and were to be at liberty to apply to this Court from time to time for further directions, as there should be occasion. That in pursuance of the said decree, the said Master made his report, dated the 19th of August last (which stands absolutely confirmed), and thereby certified that, &c. (1) And this cause coming this present day to be heard for further directions on the said report before the Right Honourable the Master of the Rolls, in the presence of counsel learned on both sides. Whereupon, and upon hearing the said decree and the said