Judgment in Actions at Common Law;-Motion in Arrest of Judgment.

emption from imprisonment by virtue of a out proof of joint indebtedness, and defenddischarge under the statute, and the plaintiff, ant may prove payment by his deceased cothough his replication was wholly insufficient, debtor; and the fact that defendant had adhad a verdict,-Held, that he might have re-mitted the debt and promised to pay it cannot lief by a motion to qualify the judgment to be aid plaintiff. Supreme Ct., 1836, Mott v. Peentered so as to give him the benefit of his trie, 15 Wend., 317; S. P., 1841, McCoon v. exemption; and such motion was accordingly Biggs, 2 Hill, 121. granted. N. Y. Superior Ct., 1829, Phoenix v. Stagg, 1 Hall, 635.

Judgment in Actions at Common Law;-Error.

for plaintiff in an action for a trespass, it can- was made to the others, the plaintiff had leave not be objected, in arrest of judgment, that to enter a nolle prosequi on the first, and take by the declaration it appears that other per- judgment on the others. Supreme Ct., 1808, sons, jointly concerned with defendant in the Livingston v. Livingston, 3 Johns., 189. trespass, were not served in the action. [1 Lev., 41.] Supreme Ct., 1807, Rose v. Oliver, 2 Johns., 365.

320. Where three persons were sued in trespass before a justice, and only two appear313. In replevin defendant ought to have ed, and they had judgment, and the Common traversed the plaintiff's right, but did not, and Pleas on reversing it gave judgment against the plaintiff only answered the matter in de- the three,-Held, that the error was fatal, and fendant's cognizance. Held, that for such a the latter judgment must be wholly reversed. departure the court could not arrest the judg-[12 Johns., 434.] Supreme Ct., 1833, Easton ment. [Gr. Pr., 256; 2 Saund., 84.] N. Y. v. Calendar, 11 Wend., 90. Com. Pl., 1842, Skidmore v. Devoy, 1 N. Y. Leg. Obs., 123.

preme Ct., 1833, Candler v. Rossiter, 10 Wend., cents in excess of the amount confessed, and 487.

325. In replevin, when the defendant avows or makes cognizance, he then becomes a plain-he move without personal notice to the detiff as it were, as well as the other party; and the avowry or cognizance resembles a declaration, and if judgment is entered upon an avowry or cognizance containing several counts, if some of them are bad in substance, the judgment must be reversed. Supreme Ct., 1832, Pike v. Gandall, 9 Wend., 149.

1. Form and Mode of Entering. 337. Settlement. After the decree is an330. Where an administrator was sued, and nounced, the court may settle it on short pleaded plene administravit, except, &c., and notice, or without notice. V. Chan. Ct., 1843, plaintiff entered judgment for twenty-eight | Townsend v. Low, 4 Edw., 249.

Decrees in Equity:-Form and Mode of Entering.

338. A decree was entered without having been legally settled, and in violation of the express directions which were given by the court in relation to the provisions to be inserted in it, and no motion was made against it,—Held, that it must be regarded as regular, and as the decree of the court. Supreme Ct., Sp. T., 1848, Cushman v. Shepard, 4 Barb., 113.

whom the affirmance was entered, and the decree of affirmance enrolled there and signed by the chancellor. Chancery, 1836, Clapper v. House, 6 Paige, 149.

346. Enrolled decrees must be signed by the court and clerk, before execution can issue. Chancery, 1843, Bank of Rochester v. Emerson, 10 Paige, 359.

Mode of enrolment. Minthorn v. Tomp

339. Order of court necessary. Decrees in equity cannot be entered without the sanc-kins, 2 Id., 102. tion of the court, even though in pursuance of a stipulation of the parties. Supreme Ct., Sp. T., 1848, Beach v. Shaw, 4 Barb., 288.

347. Death of party. Where one of the defendants dies, after the argument of a cause, and before judgment, the decree may be enter

1820, Campbell v. Mesier, 4 Johns. Ch., 334.

340. Out of term. A decree is not pro-ed as of the day of final hearing.. Chancery, nounced out of term, except when submitted out of term by consent. But a decree after argument may be entered at any time, in the chancellor's discretion. Chancery, 1820, Rose . Woodruff, 4 Johns. Ch., 547.

341. That recitals in a decree should not be argumentative. Chancery, 1816, Dey v. Dunham,* 2 Johns. Ch., 182.

342. Neglect to have counsel sign an answer, is a mere error in practice, which does not affect the validity of the decree. Chancery, 1829, Sears v. Hyer, 1 Paige, 483. 343. Order pro confesso. If an amended bill making new parties is filed, an order pro confesso is opened. Chancery, 1845, Bank of Utica v. Finch, 1 Barb. Ch., 75.

344. An amendment of a bill, which neither altered the title of the complainant to the relief that was sought, nor the relief itself, in its substance or form, may be justly regarded as merely formal, and though there may have been some irregularity in the proceedings, which the court in which they were had, upon application, might have corrected, a decree should not be set aside on the ground that a defendant against whom the original bill had been taken, as confessed, was not served with the amended bill. N. Y. Superior Ct., 1852, Clason v. Corley, 5 Sandf., 454; affirmed, Ct. of Appeals, 1853, sub nom. Classon v. Cooley, 8 N. Y. (4 Seld.), 426.

345. A decree of affirmance, on an appeal from the vice-chancellor, is to be added to the original enrolment and signed by the vicechancellor, where the proceedings are remitted to him. In other cases, the original enrolment must be transmitted to the register with

348. Where the complainant's cestui que trust died after the hearing, the decree was entered nunc pro tunc. Chancery, 1837, Wood v. Keyes, 6 Paige, 478.

349. The death of a material party, after decree pronounced, but before enrolment, will not prevent its enrolment and execution. [2 Brown's Ch. Pr., 694; 1 Newl. Pr., 666; 1 Hoffm. Pr., 390; 2 Eq. Ca. Abr., 279; Finch's R., 169; West, 675.] V. Chan. Ct., 1840, Harrison v. Simons, 3 Edw., 394.

350. A decree cannot be varied in substance, on petition, without a rehearing; but may be corrected as to clerical errors; or by insertion of any provision or direction which would have been inserted as a matter of course, if asked for at the hearing, as a necessary or proper clause to carry into effect the decision of the court. And where the further direction asked for is merely consequential upon the decree itself, the proper course is to supply the omission by a distinct order, without altering the decree. Chancery, 1838, Clark v. Hall, 7 Paige, 382. Compare Sprague v. Jones, 9 Id., 395. S. P., V. Chan. Ct., 1841, Ray v. Connor, 3 Edu., 478.

351. So material a change as adding an order for an accounting, can only be made on a rehearing. V. Chan. Ct., 1834, Gardner v. Dering, 2 Edu., 131.

352. Where evidence was irregularly taken before the master, and a decreo entered,Held, that complainant, in order to have a clerical error in the decree corrected, must submit to a rehearing. V. Chan. Ct., 1843, Townsend v. Low, 4 Edw., 249.

353. When liberty to apply is reserved in Reversed on anothe point, Ct. of Errors, 1818, a decree, the court may proceed upon it suin

15 Johns., 555.

marily; but the court does not so proceed

Decrees in Equity;-What Decrees are proper in Various Cases, and their Effect.

360. Where administrators, supposing their

upon further directions. For the latter purpose the cause must be set down for a hear-intestate to have paid a joint debt of A. and ing. Where liberty to apply is controlled by a clause for further directions, the further equities can only be determined upon a hearing. If, by reason of new facts, additional and auxiliary provisions are requisite on the further directions, to carry into effect the decree already made, after settling the points reserved, those facts may be brought forward by petition, and the court will hear the petition with the cause itself. So, when there has been a change of parties, or an accession of new parties in interest subsequent to the decree, but not of such a character as to require a formal revivor. V. Chan. Ct., 1846, Butler v. Halsey, 4 Sandf. Ch., 354.

354. Final decree. A decree which gives to the parties the full and entire benefit of the judgment of the court, is a final decree, although some further proceedings are to be had before a master, and some future orders of the court may become necessary to carry it into effect. Chancery, 1837, Mills v. Hoag, 7 Paige, 18; and see Johnson v. Everett, 9 Id., 636. Consult, also, APPEAL.

355. A final decree disposes of the whole cause, and of all previous interlocutory questions. V. Chan. Ct., 1840, Longfellow v. Longfellow, Clarke, 344.

B., filed a bill against B. to recover it, and in proof it appeared that B. was a co-surety with the intestate,-Held, that they might render the bill and recover contribution. [6 Johns., 543; 2 Atk., 141; 8 Id., 182; 2 Ves. Sen., 225; Mitf., 34, 44.] The principle that the decree must be according to the form of the bill does not mean that plaintiff can have no decree unless he makes out the precise case stated, but merely that the relief must be within its general scope and equity. The principle in equity must be substantially the same as at law; the issue may be more or less general and comprehensive; the proof must be confined to the issue, and the recovery may be of the whole or a part of any demand embraced within the issue, according to the evidence. Ct. of Errors, 1830, Livingston v. Van Rensselaer, 6 Wend., 63.

361. That where a bill charges defendant as an assignee in trust, adding, as matter of evidence, that he agreed to pay complainant's debt, the scope of the bill is the assignment; and if this is unproved, complainant cannot have a decree upon the agreement to pay. Chancery, 1832, Ontario Bank v. Root, 3 Paige, 478.

362. On a bill setting up an express trust for the benefit of creditors, the complainant

2. What Decrees are proper in Various Cases, cannot have a decree establishing a resulting

and their Effect.

356. Decree must conform to bill. No decree can be founded on evidence in relation to matters not in issue between the parties. Chancery, 1846, Tripp v. Vincent, 3 Barb. Ch., 613. 357. A decree cannot be made, which, so far from corresponding with the allegations of the bill, must directly contradict them, as to the grounds of relief. N. Y. Superior Ct., 1850, Ward v. Davis, 3 Sandf., 502.

358. No decree can be made in favor of a complainant on grounds not stated in his bill. Ct. of Appeals, 1852, Bailey v. Ryder, 10 N. Y. (6 Seld.), 363.

trust in his favor. [1 Hoffm., 49.] Supreme Ct., 1849, Rathbun v. Rathbun, 6 Barb., 98.

363. Joint demand. A complainant suing in equity for a joint demand cannot have a separate decree against one. A. V. Chan. Ct., 1845, North American Fire Ins. Co. v. Handy, 2 Sandf. Ch., 492.

364. Cross-claim. If the complainant in a bill for an account fails to make out a case for relief, the defendant cannot have a decree for a cross-claim, upon his answer, without a cross-bill. Chancery, 1844, Cobb v. Goodhue, 11 Paige, 110. Compare FORECLOSURE,

109.

359. A decree cannot be made on a ground 365. A decree may be made between not distinctly made by the bill. Ct. of Errors, co-defendants, either for a contribution, or in 1829, Forsyth v. Clark, 3 Wend., 037. To the favor of one against another. [2 Sch. & Lef., same effect, 1810, James v. McKernon, 6 Johns., 710; 2 Ball & Beat., 255.] But this can only 543. S. P. [citing, also, 2 Sch. & Lef., 1; 2 be upon facts stated in the bill, and in the litiB. & B., 228; 5 Ves., 452; 1 Johns. Ch., 146;gation between the complainant and defend12 Ves., 78], V. Chan. Ct., 1835, Byrne v. Ro- ants, or either of them. Chancery, 1828, Elmaine, 2 Edu., 445. liott v. Pell, 1 Paige, 263; 1848, Jones v. Grant,