sponds with enrollment in the English practice. While a decree in chancery is the act of the court, the prevailing party is charged with the duty of seeing that it is properly enrolled.97 In this country there is no enrollment, technically so called, and all decrees are deemed to be enrolled as of the term in which they are made.98 § 727. Effect of enrollment or recording. A decree does not, strictly speaking, become a record of the court until it has been enrolled; and although the court itself, after it has been duly settled and entered, treats it as the foundation for ulterior proceedings, it is not considered as of a sufficiently permanent nature to entitle it, in other courts, to the same attention that is paid by one court of record to the records of other courts of the same nature.99 Until a decree has been enrolled, and thereby become a record, it is liable to be altered by the court itself, upon a rehearing, while a decree which has been enrolled is not susceptible of alteration except in a court of review, or by a bill of review.100 The advantage to be ob phrase 'decretal order' is often applied to various other orders besides that which immediately precedes the decree, and it is sometimes applied in the same sense here." Burch v. Scott, 1 Bland (Md.) 112. 96 2 Daniell, Ch. Pl. & Pr. (5th Ed.) 1475; Radge v. Berner, 30 Ill. App. 183; Shannahan v. Stevens, 38 Ill. App. 574; Sagory v. Bayless, 13 Smedes & M. (Miss.) 153. 97 Stevens v. Coffeen, 39 Ill. 148; Freeman, Judgm. § 77; McRaney v. Coulter, 39 Miss. 390; Oglesby v. Foley, 46 Ill. App. 119. 98 Robinson v. Rudkins, 28 Fed. 8; Goelet v. Lansing, 6 Johns. Ch. (N. Y.) 75; Ansley v. Robinson, 16 Ala. 793; Fries v. Fries, 1 McArthur (D. C.) 291; Tabler v. Castle, 12 Md. 144; Sagory v. Bayless, 13 Smedes & M. (Miss.) 153; Cooper, Eq. Pl. 89; Story, Eq. Pl. §§ 403, 404. It was said in an Illinois case that a decree is inoperative as a decree until it has received the file mark of the clerk, and that where the decree was prepared by the judge before the expiration of his term of office, but was not filed until after his successor had been elected and qualified, it was a nullity. Russell v. Sargent, 7 Ill. App. 98. 991 Barbour, Ch. Pr. 342. 100 1 Barbour, Ch. Pr. 342. After the entry of record of the decree, subsequent proceedings must be by bill of review, or bill to impeach the decree in the nature of a bill of review, or some such subsequent tained by enrollment of a decree is to prevent its being the subject of a rehearing, and to enable the party benefited by it to plead it in bar to any new bill which may be filed against him, for any of the matters embraced by the bill upon which the decree is founded.101 Until a decree is enrolled, it is considered as merely interlocutory, and cannot be pleaded in bar to any chancery proceeding.102 The enrollment of a decree relates back to the time of the decree, nunc pro tunc, and it is the same as if it be done at the time, to all intents and purposes. 103 A decree may be enrolled nunc pro tunc, but an order for that purpose is irregular, if the petition on which it is made does not set forth the date of the decree to be enrolled.104 A decree may be enrolled, notwithstanding an abatement of the suit.105 It is said that it seems to have been at one time supposed that a decree for an account was never enrolled, but it was held in England that there was no rule preventing the enrollment of a decree which, among other things, directed the taking of accounts.106 § 728. Nunc pro tunc decrees. The rule established by the general concurrence of the American and English courts is that, where a delay in rendering a judgment or decree arises from the act of the court, as where the delay has been for its convenience, or has been caused by the multiplicity or press of business, or the intricacy of the questions involved, or for any other cause, not attributable to the laches of the party, but within the control of the court, a judgment. or decree may be entered retrospectively as of a time when it proceeding. Shannahan v. Stevens, 38 Ill. App. 571; Radge v. Berner, 30 Ill. App. 183; Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786; Hughs v. Washington, 65 Ill. 249. 101 1 Barbour, Ch. Pr. 342. 1021 Barbour, Ch. Pr. 342. See, however, Bates v. Delavan, 5 Paige (N. Y.) 299. 103 Goelet v. Lansing, 6 Johns. Ch. (N. Y.) 75. 104 1 Barbour, Ch. Pr. 343; Parker v. Downing, 1 Mylne & K. 634. 105 1 Barbour, Ch. Pr. 344; Gartside v. Isherwood, 2 Dickens, 612. 106 1 Barbour, Ch. Pr. 346; Parker v. Downing, 1 Mylne & K. 634. should or might have been entered. In such cases, upon the maxim Actus curiae neminem gravabit, which has been well said to be founded upon justice and good sense, and to afford a safe and convenient guide for the administration of justice, it is the duty of the court to see that the parties do not suffer by the delay. Whether a nunc pro tunc decree shall be made depends upon the circumstances of the particular case, and it should be granted or refused, as the justice of the case may require.107 Where one of the defendants dies after the argument of a case, and before it is decided, it is customary to enter the decree nunc pro tunc, so that it may have relation back to the day of the final hearing.108 Where the complainant died after an appeal, but the fact of his death was unknown to the counsel, and the cause was heard and decided upon appeal, it was held that the decree upon appeal might be entered nunc pro tunc as of a date previous to the death of the complainant, and after the entering of the appeal.1 109 An enrollment nunc pro tunc will relate back to the time of the decree, and protect an intermediate sale.110 Such a decree is operative as between the parties from the prior day to which it relates, but it cannot affect the rights of any but parties before it is actually rendered.111 If the decree is entered nunc pro tunc because of death, the following recital and direction should be inserted: 107 Mitchell v. Overman, 103 U. S. 62. 108 1 Barbour, Ch. Pr. 341; Campbell v. Mesier, 4 Johns. Ch. (N. Y.) 334; City of New Orleans v. Gaines' Adm'r, 138 U. S. 612. 1091 Barbour, Ch. Pr. 341; Vroom v. Ditmas, 5 Paige (N. Y.) 528. See, also, Wood v. Keyes, 6 Paige (N. Y.) 478; Lawrence v. Richmond, 1 Jac. & W. 241; Donne v. Lewis, 11 Ves. 601; Jesson v. Brewer, 1 Dickens, 371; Gunderman v. Gunnison, 39 Mich. 313; Harrison v. Simons, 3 Edw. Ch. (N. Y.) 394; Crislip v. Cain, 19 W. Va. 438; Burnham v. Dalling, 16 N. J. Eq. 310; Dawson v. Scriven, 1 Hill, Eq. (S. C.) 177, 110 Goelet v. Lansing, 6 Johns. Ch. (N. Y.) 75. 111 Dawson v. Scriven, 1 Hill, Eq. (S. C.) 177. See, for nunc pro tune decrees, Hazard v. Durant, 14 R. I. 25; Emery v. Parrott, 107 Mass. 95; Johnson v. Thomas, 2 Paige (N. Y.) 377; Gray v. Brignardello, 1 Wall. (U. S.) 627; Mitchell v. Overman, 103 U. S. 62; Newland v. Gaines, 1 Heisk. (Tenn.) 720. "And it appearing by affidavit, to the satisfaction of this court, that the complainant, A. [or the defendant E.] has departed this life since the argument of this cause, it is further ordered that this decree be entered nunc pro tunc as of the of 19-"112 § 729. Amendment and modification of decrees. day Until a final decree has been filed or recorded, the chancellor may alter, amend, change, or even disregard all he has said in his minutes.113 The court may do this at the suggestion of either party, or on its own motion.114 Under the English chancery practice, all applications to vary the minutes of decrees were required to be made to the court or officer by which the decree was pronounced, and the chancellor had no power to alter the decree made by a vice-chancellor, except upon appeal. Therefore, where a decree had been made by Lord Cottenham when master of the rolls, an application to him, after he was lord chancellor, to vary the minutes of the decree, and which was not consented to, was refused.11 As a general rule, a final 1121 Barbour, Ch. Pr. 340. 118 Hughs v. Washington, 65 Ill. 245; 1 Barbour, Ch. Pr. 349; 1 Newland, Ch. Pr. 316; Reeves v. Keystone Bridge Co., 2 Ban. & A. 256, Fed. Cas. No. 11,661; Gibson v. Crehore, 5 Pick. (Mass.) 146; Porter v. Vaughan, 22 Vt. 269; Willis v. Farrer, 2 Younge & J. 241; Harwood v. Fisher, 1 Younge & C. 110; Grey v. Dickenson, 4 Madd. 464. "As long as the decree remains in the shape of minutes,—that is, until it has been settled and entered by the register,-it may be rectified upon application to the court by petition or motion; and even important matters may be brought before the court upon an application to vary the minutes. Thus, where the court directed an issue to be tried at the next assizes, and the decree was not drawn up or passed in sufficient time, the minutes were varied by directing the trial of the issue at the subsequent assizes. So, where the facts are stated in the answer, which are not contradicted, and which, if true, would lead to a material alteration in the frame of the suit, the court will, on motion, permit the minutes of the decree to be amended, with a view to ascertain the truth of those facts." 1 Barbour, Ch. Pr. 349; Grey v. Dickenson, 4 Madd. 464; 1 Newland, Ch. Pr. 316; Webber v. Hunt, 1 Madd. 13; Willis v. Farrer, 2 Younge & J. 241; Hardwood v. Fisher, 1 Younge & C. 110. 114 Witters v. Sowles, 32 Fed. 130. 115 1 Barbour, Ch. Pr. 349, 350; Reece v. Reece, 1 Mylne & C. 372. It is decree does not pass beyond the power of the court to modify or vacate it until after the expiration of the term in which it was entered.116 After the lapse of the term at which the final decree was entered, alterations or amendments thereto, upon motion, are not allowed as a general rule. The exceptions are confined to mere clerical errors, errors of form, or matters quite of course.117 Though the minutes of the decree may be corrected in certain instances, yet, after the decree has been settled and entered, the court will not entertain any application to vary it, unless upon consent of all parties, or in respect to matters which are quite of course; as where a decree is obviously wrong, or there is a clear mistake made by the court or counsel in drawing it up. The proper method of having a decree rectified in matters of substance is by applying to have the cause reheard.118 No alteration can be made in a decree, on motion, without a rehearing, except in a matter of clerical error or form, or where the matter to be inserted is clearly consequential on the directions already given.119 Errors in judgments or decrees are divided into errors clerical and errors judicial. The former may be amended even after the term, provided the existence of such error is shown by the record, and not other competent for a judge other than the one who presided at the hearing to amend a decree so as to show the true amount due. Palmer v. Harris, 100 Ill. 276. 118 Frink v. King, 4 Ill. 144; Bronson v. Schulten, 104 U. S. 410; Burch v. Scott, 1 Bland (Md.) 112; Pattison v. Josselyn, 43 Miss. 373; Fraker v. Brazelton, 12 Lea (Tenn.) 278. A final decree cannot be modified after the term. Petersburg Sav. & Ins. Co. v. Dellatorre, 30 U. S. App. 504, 70 Fed. 643; Williams v. Banks, 19 Md. 524; Garlington v. Copeland, 32 S. C. 57, 10 S. E. 616. 117 Lilly v. Shaw, 59 Ill. 72. 118 1 Barbour, Ch. Pr. 350; 1 Newland, Ch. Pr. 317; Gardner v. Dering, 2 Edw. Ch. (N. Y.) 131; Bennett v. Winter, 2 Johns. Ch. (N. Y.) 205; Rogers v. Rogers, 1 Paige (N. Y.) 189; Hendricks v. Robinson, 2 Johns. Ch. (N. Y.) 484. 119 1 Barbour, Ch. Pr. 351; v. Parkinson, 3 Swanst. 233; v. Bradley, 2 Sim. & S. 64. Clark v. Hall, 7 Paige (N. Y.) 382; Willis (753) |