of a court made upon the hearing. A decretal order is an order in the nature of a decree, made upon motion or petition, either before or after the hearing. The order made upon motion before hearing, for example, in suits for the specific performance of contracts, as for a reference to a master to inquire into the vendor's title, is a decretal order. Orders made upon petitions addressed to the court in a summary manner, either on behalf of infants or under the authority of acts of the legislature, also come under the denomination of "decretal orders"; as do also those orders which are made upon petitions presented under the authority of decrees which, although final with regard to the persons having the immediate interest in the property in the hands of the court, reserve a right to parties who, upon the determination of the immediate interest, shall be interested in the property, to apply to the court touching the same, as they shall be advised.10 § 702. Decrees requiring further orders to complete them. There are instances of decrees which, although they are final in their nature, require the confirmation of a further order of the court before they can be acted upon. The most ordinary case in which a further order is necessary to complete the decree is that of a decree for the foreclosure of a mortgage.11 report of the amount due." Johnson v. Everett, 9 Paige (N. Y.) 636. A decree entered pursuant to an order pro confesso on a cross bill is not final, but interlocutory, where it leaves undetermined as between the parties to the original and supplemental bills, the question of the legal ownership of property in dispute, and where, also, it is nec essary to refer the cause to a master for an accounting in respect to rents and profits. Blythe v. Hinckley, 84 Fed. 228. See, also, Ex parte Railroad Co., 95 U. S. 221; Ayres v. Carver, 17 How. (U. S.) 594; Holgate v. Eaton, 116 U. S. 33. A decree dismissing a cross bill is not a final decree. Ayres v. Carver, 17 How. (U. S.) 591. 91 Barbour, Ch. Pr. 337. 10 1 Barbour, Ch. Pr. 337. 111 Barbour, Ch. Pr. 332. See Tuckfield v. Buller, 1 Dickens, 241; Hubble v. Read, 1 Dickens, 243, note. In the case of Lowther v. Andover, 1 Brown Ch. 397, which was a bill filed on behalf of a pur chaser for the specific performance of an agreement for the sale of 703. Reservation of liberty to apply. Although it is the usual practice of the court, in making a decree, to make a complete decree upon all the points connect ed with the case, so as to make a final disposition thereof, yet it sometimes happens that a decision upon all the points cannot be pronounced until a future period. Thus, for instance, the interest of a fund may belong to a person for life, and, after his death, the fund may be distributable among a particular class of individuals. In such a case, though those who form that class, as well as the tenant for life, must be, and in general are, before the court at the time when the decree is pronounced, the court will not at that time take upon itself to declare their interests in the fund, because it is a rule never to declare rights which are not immediately to be acted upon, lest events should occur, before the time of acting upon them, which may create an alteration in those rights. All that the court does, therefore, under such circumstances, is to decree the interest of the fund to be paid to the person entitled to the dividends during his life, and to declare that, upon his death, the parties interested in the fund are to be at liberty to apply to the court as they may be advised. The same kind of liberty is also given in any other case in which it may seem necessary; and the effect of it is not to alter the final nature of the decree. A decree with such a liberty reserved is still a final decree, and, when signed and enrolled, may be pleaded in bar to another suit for the same matter. The effect of it is, however, to permit persons having an interest under it to apply to the court touching such interest, in a summary way, either by petition or motion, without the necessity of again setting the cause down.12 On the same principle, if a sum of money apan estate, a decree was made directing the master to appoint a time and place for the payment of the principal money, interest, and costs; and it was directed that, in default of payment, the bill was to be dismissed, with costs to be taxed, etc. This, although a final decree, required a subsequent order of the court to complete it. 1 Barbour, Ch. Pr. 332. 121 Barbour, Ch. Pr. 332; Adams, Eq. 388. The form of clause grant pears at the hearing to belong prima facie to one person, subject to claims by others which cannot then be discussed, it will be carried to the account of the prima facie owner, with the direction that it shall not be paid to him without notice to the adverse claimants, and such claimants may then present a pe tition to have the fund paid out of court, and may serve it on the party in whose name it stands.13 Applications under a reservation of liberty to apply may be made either by motion or petition, except in cases where the object is to have money paid out of court, where the application should be by petition unless the title to the fund is clear, as where the money has been carried over to the separate account of the party, or the application extends only to the payment of interest, in which cases, it seems, it may be made upon petition.11 § 704. Decrees by consent. A decree by consent is binding unless procured by fraud, where the parties are competent to consent.15 The court will not, as a general rule, make any decree by consent, where infants are concerned, without referring it to a master to determine whether it will be for their benefit; yet when once a decree is pronounced without that previous step, the infants will be bound by it.16 The court will not set aside a decree made by consent of counsel for the parties, either by rehearing or appeal, or by bill of review, unless, by clerical misprision, anything has been inserted in the order, as by consent, to which the party had not consented, in which case, Lord Thurlow appears to have considered that a bill of ing liberty to apply is: "And any of the parties are to be at liberty to apply to the court as occasion shall require." Curtis, Eq. Prec. 393. 13 Adams, Eq. 389. 141 Barbour, Ch. Pr. 333. See Anonymous, 4 Madd. 228; Heathcote v. Edwards, Jac. 504. 15 1 Barbour, Ch. Pr. 373; Frank v. Bruck, 4 Ill. App. 627; French v. Shotwell, 6 Johns. Ch. (N. Y.) 235; Stinson v. Ashley, 5 Russ. 4. 161 Barbour, Ch. Pr. 373. See Schermerhorn v. Mahaffie, 34 Kan. 108, 8 Pac. 199; Gooch v. Green, 102 Ill. 507. review would lie.17 Such an order or decree cannot be modified or varied in an essential part without the assent of both parties to the same; but the court, upon the application of either party, may give such further directions as shall become necessary for the purpose of carrying such order or decree into effect according to its spirit or intent.18 A consent decree cannot be appealed from.19 The consent of counsel to a decree is to be given upon their own conception of the authenticity of their instructions, and, as a client is bound by the act of his counsel, he must, if the counsel has consented without sufficient authority, seek his remedy against the counsel.20 Where it appears of record that the defendant assented to the decree through his solicitor, it is equivalent to a direct finding as a fact by the court that the solicitor had authority to do what he did, and it binds the court of review so far as the question is one of fact only, and the consent is equivalent to an admission by the parties on the record that the facts exist on which the decree rests.21 Where a decree has 171 Barbour, Ch. Pr. 373; Anonymous, 1 Ves. Jr. 93; Atkinson v. Manks, 1 Cow. (N. Y.) 691; Kane v. Whittick, 8 Wend. (N. Y.) 219; Ringgold's Case, 1 Bland (Md.) 5. See, also, to same effect, 2 Daniell, Ch. Pl. & Pr. (6th Am. Ed.) 974; Stewart v. Stewart, 40 W. Va. 65, 20 S. E. 862. 18 1 Barbour, Ch. Pr. 351; Leitch v. Cumpston, 4 Paige (N. Y.) 476. 19 Pacific Railroad v. Ketchum, 101 U. S. 289; Cole v. Scott, 14 Jur. 25; Carew v. Cooper, 12 Wkly. Rep. 767. It was held by the supreme court of the United States that in the federal court, on account of statutory enactments (Rev. St. U. S. § 692), appeals were a matter of right, and although errors which were in law waived by consent would not be considered by the supreme court, nevertheless such court had jurisdiction of the case, but must take all the facts as admitted, and consider only whether the case was one in which, under any set of facts, the decree could be entered. Pacific Railroad v. Ketchum, 101 U. S. 289. 20 1 Barbour, Ch. Pr. 373; Bradish v. Gee, 1 Amb. 229. In Pacific Railroad v. Ketchum, 101 U. S. 289, it is held that the question cannot be raised on appeal, and that the remedy for the fraud or conduct of the solicitor or the officers of the corporation is by an appropriate proceeding in the court where the consent was received and acted upon, and in which proof may be taken of the facts ascertained. 21 Pacific Railroad v. Ketchum, 101 U. S. 289. been obtained by fraud, relief may be had against it by original bill.22 When a decree is made by consent, it should be so stated in the decree.23 $705. Decrees pro confesso. Where the bill is taken pro confesso, the cause must be brought to a hearing, as well as in other causes.24 Decrees pro confesso have already been fully considered.25 § 706. Decrees by default. If, at the hearing, the defendant does not appear, his default is entered, and the court proceeds at the hearing to render a decree by default. Decrees of this nature differ little in point of form from ordinary decrees made upon hearing all parties. Under the English practice, such a decree was not considered as the judgment of the court, but as the act of the party who obtained it, conceiving what the judgment of the court would be if the other party had appeared. It was taken at the peril of the party obtaining it, if he could not support it by pleadings and proofs.26 By an ordinance of Lord Bacon, 22 1 Barbour, Ch. Pr. 373; Bradish v. Gee, 1 Amb. 229. 28 1 Barbour, Ch. Pr. 339; Seton, Decrees, 375. The recital that the decree was made "with the consent of all the parties" binds only the parties, and not those who should have been parties. Dibrell v. Carlisle, 51 Miss. 785. See, also, for what constitutes consent decrees Lee v. Lee, 77 Ala. 412; Mitchel v. Hardie, 84 Ala. 349, 4 So. 182. The recital in the record of the decree that the case came on for final hearing upon the stipulation of the parties does not show that the decree was rendered by consent. American Emigrant Co. v. Fuller, 83 Iowa, 599, 50 N. W. 48. The distinction between a final decree and a stipulation upon which such decree may be entered is that the sanction of the court is necessary to give such agreement the effect of a final decree. Roemer v. Neumann, 26 Fed. 332. 24 1 Barbour, Ch. Pr. 369; Rose v. Woodruff, 4 Johns. Ch. (N. Y.) 547; Thomson v. Wooster, 114 U. S. 110; Williams v. Corwin, Hopk. Ch. (N. Y.) 471. 25 See supra, § 151. 26 1 Barbour, Ch. Pr. 372; 1 Hoffman, Ch. Pr. 557; Carew v. John ston, 2 Schoales & L. 300; Knight v. Young, 2 Ves. & B. 186. |