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.1

§ 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.

151 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. 16 1 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.2 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.

where no counsel appeared for the defendant at the hearing, and the process appeared to have been duly served, the answer of such defendant was read in court, and Lord Clarendon, after adopting this regulation, ordered that if the court, on the hearing, should find cause to decree for the complainant, yet a day should be given to the defendant to show cause against the same.27 If the complainant does not appear at the hearing, the bill will be dismissed with costs.28

§ 707. Decrees in rem and in personam.

Decrees are of two classes,-decrees in rem and decrees in personam. The former have been defined to be adjudications pronounced upon the status of some particular subject-matter by a tribunal having competent authority for that purpose, while it is said that a decree in personam is in form, as well as in substance, between the parties claiming the right, and that it so appears by the record itself.29 The accuracy of this definition, however, has been controverted.30

§ 708. Decree between co-defendants.

A decree may be made between co-defendants, grounded upon. pleadings and proofs between the complainant and the defendants. It was said to be the constant practice of the court of chancery of New York, when such court existed, to so do.31 The right so to do is based upon the desire on the part of the courts to prevent a multiplicity of suits. To be binding upon

271 Hoffman, Ch. Pr. 558; Beames, Order Ch. 197. For cases concerning decrees by default, see Geary v. Sheridan, 8 Ves. 192; Carew v. Johnston, 2 Schoales & L. 300; Stubbs v. 10 Ves. 30;

Knight v. Young, 2 Ves. & B. 186; Webb v. Litcot, 3 Atk. 25. See Speidel v. Fuller, 2 Dickens, 633; Beames, Order Ch. 29, 197; 1 Daniell. Ch. Pl. & Pr. (1st Ed.) 622. See post, Appendix A.

281 Hoffman, Ch. Pr. 557. See Ellis v. King, 5 Madd. 21; Robson v. Cranwell, 1 Dickens, 61; Kemp v. Squire, 1 Ves. Sr. 205.

29 Woodruff v. Taylor, 20 Vt. 65; Cross v. Armstrong, 44 Ohio St. 613; Freeman, Judgments, § 606.

30 Freeman, Judgments, § 606 et seq.

311 Barbour, Ch. Pr. 339; Elliott v. Peil, 1 Paige (N. Y.) 268. See Chamley v. Dunsany. 2 Schoales & L. 710.

co-defendants, such decree must be founded upon and connected with the subject-matter of the litigation between the complainant and one or more of the defendants.32

$ 709. Decrees against infants.

An infant complainant is as much bound by a decree as a person of full age.33 In this respect courts of equity follow the rule of law, but, if gross laches appear upon the part of the prochein ami, the infant may open the decree by a new bill. In general, infants are bound as much as adults by the conduct of their solicitors as respects matters of practice, acting bona fide in their behalf, but not as to matters of mistake, fraud, or collusion.34 And infant parties defendant regularly before the court are bound as though they were adults,35 with the qualification that, after becoming of age, they may impeach them for fraud, collusion, or error apparent on the face of the decree, or may prosecute an appeal or writ of error, within the time after majority fixed for adults, from decrees,36 or, in some jurisdictions, may show cause within the time limited for that purpose.

37

321 Barbour, Ch. Pr. 340; Elliott v. Pell, 1 Paige (N. Y.) 268. For right of the court to make decree between co-defendants when no cross bill is filed, see post, § 893.

331 Barbour, Ch. Pr. 335; Gregory v. Molesworth, 3 Atk. 626. But see Jarvis v. Crozier, 98 Fed. 753; Long v. Mulford, 17 Ohio St. 484. 34 Bent v. Maxwell Land Grant & Ry. Co., 3 N. M. 227, 3 Pac. 721. 35 "And it is well settled with us that an infant, as a general rule, is as much bound by a decree against him as a person of full age. The law recognizes no distinction between a decree against an infant and a decree against an adult; and therefore it is that an infant can impeach it only upon the grounds which would invalidate it in the case of another person, such as fraud, collusion, or error. Zirkle v. McCue, 26 Grat. (Va.) 517, 528; Pennybacker v. Switzer, 75 Va. 671; 1 Minor, Inst. Com. & St. Law (2d Ed.) 507, 508." Harrison v. Wallton's Ex'r, 95 Va. 721, 30 S. E. 372.

36 Vaccaro v. Cicalla, 89 Tenn. 63, 14 S. W. 43; Sites v. Eldredge, 45 N. J. Eq. 632, 18 Atl. 214, 14 Am. St. Rep. 769.

37 Huson v. Wallace, 1 Rich. Eq. (S. C.) 1. See post, § 710.