Page 90, last line, for "Executors," read "Executions." "141, See Addenda, No. 3. "144, subd. 11, after the word "New-York,” insert "or in any other city in which a daily paper is printed." after the word "partition," on the 7th line from the bottom, insert "except in cities where a daily paper is printed." "145, n. 2, for " Famar," read" Farnam," and for "619," read "614." "147, See Addenda, No. 4. "149, See Addenda, No. 5. "185, 6th line from bottom, for "bills," read "wills." "193, n. 1, for "323," read "328." Page 121, last line, the decision in Wakeman v. Russell has been overruled. CHAPTER 23. CORRECTION OF A DECREE IN THIS COURT AFTER EN ROLMENT. SECTION I. BY PETITION. CLERICAL errors, or those of form apparent upon the face of the decree or the schedules to a report, may be corrected by petition even after enrolment; as may also a decree obtained by surprise.(1) The general rule is, that a decree regularly obtained and enrolled cannot be altered but by bill of review;(2) yet it appears that if obtained by default, the court will vacate (1) Weston v. Haggersten, Cooper's Cas. 134. The master had made a mistake in the schedules to his report, by wrongly adding up the balances; by which the defendant was charged £7000 more than he ought to have been. Upon further directions the defendant was ordered to pay this amount. The plaintiff then enrolled the decree, and the mistake was afterwards discovered. The question was whether the mistake could be rectified on a summary application to the court, or whether a bill of review was not necessary. The Lord Chancellor said that all errors apparent on the face of schedules could be rectified even after enrolment, but that there could be no corrections except of such apparent errors, and that the mistake in the schedules might be rectified. Stevens v. Guppy, 1 Turner & Russ. 178. The Lord Chancellor vacated an enrolment of a decree upon the ground of the party enroling it having said that which had led the other party to believe that it would not be enrolled. Kemp v. Squire, 1 Vesey, Sen. 205 and cases. See also Barnes v. Wilson, 1 Russ. and Mylne, 486, and Balguy v. Chorley, 1. Mylne and Keene, 640. (2) Bennet v. Winter, 2 Johns C. R. 205. the enrolment in a case in which a decree by default will be opened.(1) In a case in which there had been a decree for the sale of real estate upon a creditors bill, and the purchasers objected to take the title because judgment creditors of the devisees were not made parties, leave was given to file a supplemental bill for the purpose of bringing them in; and an order was made setting aside the decree and vacating the enrolment.(2) ses. In a case before the vice-chancellor of the first circuit a decree had been made for the partition of certain premiThe commissioners made their report and a decree was made and enrolled for making the partition effectual, &c. A certain parcel of ground contained in the bill and decree for partition, had been taken into consideration by the commissioners in their allotment, and in their abstract was set apart to one of the parties; but by mistake the parcel was omitted in their report, and 'of consequence in the final decree. A supplemental report of the commissioners stating these facts was obtained, and on petition an order and decree was made that the allotment of such parcels to J. A. K. and M., his wife, be deemed binding and effectual between the parties, that such parcels be held in severalty by the said J. A. K. and wife, and that such report and petition be annexed to the enrolment of the decree, and that the present decree be enrolled and annexed thereto. See the prayer of the petition in this case and the order, Appendix No. 207. SECTION II. BILL OF REVIEW. The leading principles of the court upon the subject of bills of review are contained in an order of Lord Bacon, which has regulated the subject since his time. By the first of his orders no decree is to be reversed, altered or explained, being once under the great seal, but upon bill of review; and no bill of review shall be admitted unless it contain either error in law (1) Beekman v. Peck, 3 Johns. C. R. 415. (2) Morris v. Mowatt, reported 2 Paige, 586. made the 31st of October, 1831. The above order was |
