CHAPTER X.

OF A DECREE IN EQUITY.

A DECREE is the sentence or judgment of the court pronounced after the hearing or submission of the cause. It may be interlocutory or final. The former is properly an order or decree pronounced for the purpose of ascertaining matter of fact or law, preparatory to a final decree. It very seldom happens that the first decree can be final or conclude the cause. The most usual ground for not making a perfect decree in the first instance is the necessity which frequently exists to ascertain a disputed fact, by an issue at law, or to refer a cause to a master of the court, to make inquiries, or to take accounts, or to adjust other matters which must be disposed of before a final decision can be made of the subject-matter of the suit. In England, it is very common, where any difficult question of law is raised, for the chancellor to send a case in which it is presented to one of the common law courts for an opinion; but this practice has never prevailed in the United States. The occasion and manner of referring a cause to a master has been considered in a previous chapter; and it remains for us to explain the anomalous proceeding called a feigned issue, which seems to have been borrowed from the sponsio judicialis of the Roman law. If the court, in consequence of the defects incident to all written testimony, is embarrassed in the solution of a question of fact, it may either order a regular action at law, or may direct a master to frame an issue involving the question between the parties, and then require them to proceed at law, as for a wager; the plaintiff in equity being ordinarily the plaintiff at law,

and averring in his declaration that a wager has been laid on the truth of the statement in the issue, and the defendant admitting the fact. As this proceeding takes place for the purpose of informing the conscience of the court, it is not strictly bound down to the form and incidents of an ordinary trial. Sometimes it insists on more than the common law tribunal would have been satisfied with; as on the issue devisavit vel non, where the examination of all the three witnesses to the will is indispensable; sometimes it is satisfied with less, and directs the examination of the parties themselves, and also the reading of the depositions which may have been previously taken. When the verdict is returned, it having been obtained for the satisfaction of the conscience of the chancellor, he may, if he thinks proper, inquire into all which passed at the trial, and if he is not, under the circumstances, convinced by the verdict, treat it as a nullity.

A decree is final when it fully decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court. It is not final because it settles one or more material questions involved in a case, if others remain to be determined. So it may be final, although it contains a reference to a master, if it at the same time provides for all the contingencies which may arise upon his report, and leaves no necessity, upon its confirmation, for any further order of the court, to give to all parties the entire benefit of the decision. Of this nature is a decree directing land to be sold, and appointing a commissioner to perform the order and execute a conveyance; a decree ascertaining the amount due, directing a sale, and giving costs; or any decretal order upon which an execution may be taken out.

There are, however, some decrees which, although final in their nature, require the confirmation of a further order of the court, before they can be acted upon. Of this

nature are decrees in suits against infants, in which a day is given to the infant to show cause against it, after he attains twenty-one. This is because an infant is always under the protection of the court, and there may be neglect or collusion on the part of his guardian, through whom he answers. Such collusion or fraud, therefore, is the chief ground for reversing a decree after he is of age; or he may show error, or make a new case not before insisted upon. He is not, however, under the necessity of waiting until he becomes of age, to seek redress, but may impeach the decree at any time before it is made absolute, by an original bill.

To the same class belong decrees nisi, or by default, which, as we have seen, are incomplete until confirmed and made absolute by a subsequent order of the court. They differ very little in point of form from ordinary decrees, made upon hearing all parties. A decree of this nature is not considered as the judgment of the court, but as the act of the party who obtain it, conceiving what the judgment of the court would be if the other party appeared. And it is taken at his peril, if not supported by the pleadings and proofs.

Where, however, the bill is to be taken pro confesso, the proper course seems to be for the court itself to examine the pleadings and pronounce the decree, and not permit the complainant (as in the case of default at the hearing) to take such decree as he thinks will stand.

The court being at length, by certificate of the judges, the verdict of a jury, or the report of a master, possessed of every information necessary to enable it to adjust and decide the rights of all parties, the cause is again brought to hearing, on the equitable matters reserved, and a definite decree rendered, according to equity and good conscience.1

1 As we have noticed in a former page the accustomed form of 'proceeding by the parties at the hearing of a cause in equity, it may

Form of Decrees.

Decrees in general consist of three parts: 1. The date and title. 2. The recitals; and, 3. The ordering part, to which may sometimes be added 4. The declaratory part, which when made use of, generally precedes the ordering part. The decree commences with the name of the court, and the place where it is held, the term at which it is pronounced, and the title of the cause. The practice in England, at one time, was to recite at length the pleadings and evidence in the cause; but this practice, in consequence of its expense and inconvenience, has been abolished, and the decree now merely recites the substance of the pleadings and the facts on which the court founds its judgment. In the United States the decree usually contains a mere reference to the antecedent pleadings, without embodying them, or any special facts upon which it is rendered. After the recitals comes the ordering or mandatory part of the decree, containing the specific directions of the court upon the matter before it, which it is obvious must depend upon the nature of the particular case which is its subject. Where the

not be amiss to continue that deduction by subjoining here a short account of the manner in which the decree of the court is taken and recorded. This is done by the register of the court, who minutes down in a book kept for that purpose a memorandum of the person or persons then presiding on the bench and present at the hearing; the names of the counsel on both sides; the evidence and documents read; the objections (if any) made to such evidence; the manner in which such objections were disposed of; and lastly, the final sentence, judgment, or decree of the court, pronounced on the rights and interests of the several parties in the cause. And upon the minutes thus taken, the decree of the court, as afterward drawn up and recorded, is founded; and with which it must in substance exactly correspond; for no part of the decree but what is warranted by the minutes will be binding upon the parties. If, however, they are erroneous, they will be rectified on proper application to the court.

suit seeks a declaration of the rights of the parties, the ordering part of the decree should be prefaced by such declaration. This is not, however, absolutely necessary, and its omission will not invalidate the decree. It may be observed in this place that when a decree is made by consent, it should be so stated. For the better understanding of the subject, the following forms of decrees, in familiar cases, are inserted:

General Form.1

Monday, the 12th day of November, 1795, in the thirtysixth year of the reign of his Majesty, King George the Third; between James Willis, an infant, by John Willis, his father and next friend, plaintiff, and Edward Willis, William Willis, and Samuel Dickenson, defendants.

This cause coming on this day, to be heard and debated before the right honorable the Lord High Chancellor of Great Britain, in the presence of counsel learned on both sides, the substance of the plaintiff's bill appeared to be, that, etc. (here the plaintiff's bill is shortly recited). Therefore that the said defendant may pay, etc. (the prayer of the bill), and to be relieved, is the scope of the plaintiff's bill; whereto the counsel for the

1 The following form of a decree pro confesso, is taken from Wilcox's Ohio Forms. It is not the common practice in Ohio to express in a decree the facts upon which the decision of the chancellor is founded.

This cause came on to be heard upon the bill, exhibits, and testimony, and the defendant still failing to appear and plead, answer or demur to said bill, the court, on consideration of the premises, do order and decree that the said bill be taken for confessed, and that the said C. D. shall within days (the specific decree, according to the nature of the case).