A receipt subsequently discovered, is not alone sufficient to open a verdict, judgment, award, or decree.(b) A regular decree on the merits, cannot be set aside on motion; and it seems, that where it is sought to set aside a decree on the ground of surprise and irregularity, the course is to apply by petition.(c) The recitals in a decree should not be argumentative, but state merely the conclusions of law and fact.(d) Where a deed is set aside as constructively fraudulent, it is usual to direct a release and reconveyance by the party claiming under the deed, with a covenant against his own acts.(e) A final decree, regularly obtained and enrolled, cannot be opened or altered, but in a bill of review; and if not enrolled, it can be connected only on a rehearing, duly applied for according to the rules of the court.(f) Instead of enrolment on parchment as formerly used, the bill, answer, pleadings, and orders, &c. in a cause, are annexed and filed, with a fair engrossed copy of the final decree, in the register's office, after the (b) Todd v. Bartow, 1 Johns Chan. Rep. 553 (c) Radley and others v Shaver and others, 1 Johns. Chan. Rep. 200. (d) Dey v. Dunham, 2 Johns. Chan. Rep. 182. (e) Ibid. ff Bennet v. Winter & Rankins, 2 Johns. Chan. Rep. 205. expiration of thirty days from the time final decree is pronounced. (a) Of enforcing obedience to, or the performance of a decree. There are certain decrees, which relate to mortgages, in which the mode of proceeding is peculiar to themselves. These we do not mean to speak of here, but in a distinct chapter. No process can issue, or other proceeding be had on any final decree, until the same shall have been engrossed.(b) Obedienc to the decrees of the court of Chancery in this state, is enforced by virtue of two acts, one of which was passed on the 3d day of April, 1801, and the other on the 23d of February, 1802. By the former act, continued by the act of 10th of April, 1813, sec. 9. it is provided, that decrees may be enforced by sequestration, and by the latter act, continued by the act of the 10th of April, 1813, sec 4. it is provided, that decrees may be enforced by execution. For the mode of enforcing obedience by sequestration, vide ante, proceedings against a defendant out of this state, or where he cannot be found(c) And for proceeding by execution, it is provided by the 9th section of the act of 1802, continued by an act of the 13th of April, 1813, sec. 4. that it shall be lawful for the court of Chancery to enforce obedience to, or performance of any of its decrees by execution, either against the body of the person who shall be bound to perform the same, or against the goods and chattels, and in default thereof against the lands and tenements (a) Act. 1. N. R. L. 488.) Wiser v. Blachly and others, 2 Johns. Ch. Rep.488. (b) Rule 35. (c) 1 N. R. L. 489-490, 6. 9. K. & R. 441. s. 8, 9. of the person bound to perform such decree. The form of such execution shall be such as the court of Chancery shall from time to time direct or approve of, and shall have the same force and effect as executions of a similar kind, issuing out of courts of common law, and shall be served and executed in like manner; provided, that no goods or chattels, lands or tenements shall be bound thereby, as against an innocent bona fide purchaser without notice, until an actual levy or seizure shall be made thereupon.(d) These statutes by no means take away or interfere with the previous powers of the court of enforcing its decrees; indeed, the provision of the statute of the 10th of April, 1813, sec. 9. cannot apply where the decree of the court is for the payment of a certain sum of money. It often happens, however, that the decree of the court is for the performance of some act, as that the defendant shall execute conveyances, deliver up deeds, &c. in which case the statutary executions cannot be effectual, and recourse must be had to the common law proceeding, which is in the first place a process directed to the party commanding him to obey the decree of the court. (Vide post, writs of execution.) If the party neglects to perform the decree upon affidavit of service of the writ of execution, or perhaps of a copy of the decree and of the disobedience of the defendant, the court will make an order that hè be committed, or he may be proceeded against by the ordinary process of contempt. When the decree is for the delivery of the possession of lands, injunction and writ of assistance will lie if resorted to.(e) (d) 1 N. R. L. 487. sec. 4. W. V. p. 28. sig. See rules of court page, 56. (e) For writ of assistance and other forms of executions, see the Appendix, post, p. 24. Suing out execution merely, does not create a lien on goods and chattels; but there must be an actual levy of the execution, to bar any subsequent bona fide sale.(f) The property of the debtor in goods and chattels, is not changed until execution is executed.(g) Before the act, sess. 36. c. 203. s. 50. interest could not be levied on a judgment recovered previous to that act.(h) It seems that all persons are bound to take notice of decrees in Chancery, as well as of judgments at law, but not of interlocutory orders.(i) OF REHEARING. If the party against whom a decree is pronounced is dissatisfied with the decree, he may within thirty days after it is pronounced, or at any time thereafter, before the decree is enrolled and signed by the Chancellor and filed, present a petition for a rehearing(a) This petition must be signed by two counsel, and must contain the special matter or cause on which the rehearing is applied for; and the facts therein stated, if not appearing from the proceedings in the court, must be verified by an oath of the party, or of some other person.(b) A copy of the petition, and a copy of the affidavit, if there be any, must be served on the adverse party, with a notice of presenting the same, and of the motion to be founded thereon, at least four days before the day of presenting the petition, or making the motion thereon, otherwise the party presenting the petition will only be entitled to an order nisi,(c) so that it is not absolutely necessary to give notice of presenting the petition; but if it be presented without notice, an order will be made that the prayer thereof be granted unless the adverse party show cause to the contrary, by a day to be fixed by that order, a copy of which order must be served on the adverse party.(d) A petition for a rehearing, supersedes all proceedings upon the decree until the petition be disposed of. In all cases submitted by the consent of parties without argument, a rehearing shall be granted of course, if either party is dissatisfied with the decree or order made in such case, and shall apply therefor before the end of the term succeeding that in which such decree or order shall be made.(e) A rehearing rests in the discretion of the court, and is not granted on a decree for costs only, unless under special circumstances.(f) A petition for a rehearing ought to state the grounds on which the rehearing is asked, to enable the court to exercise its judgment as to the propriety of granting the motion.(g) If a final decree be not enrolled, it can only be cor (c) Rule 40. (d) Rule 58. (e) Rule 70. Johns. Ch. Rep. 48. Eastburn & Downes (ƒ) Travis and others v. Waters, 1 Johns. Ch, Rep. 488 |