wise.120 A decree may be corrected or amended on motion or petition, not only as to mere clerical errors, but by the insertion of any provision or direction which would have been inserted as a matter of course, if the same had been asked for at the hearing as a necessary or proper clause to carry into effect the decision of the court.121 Errors judicial can only be amended upon a rehearing or appeal, or by bill of review.122 A decree cannot, however, be rectified by way of further directions. Further directions are not given upon motion. They are only granted upon a hearing after a master's report, or upon the cause coming on again for the purpose, in pursuance of a former order or decree. The court may then add to a decree. But upon a hear

120 Hudson v. Hudson, 20 Ala. 364; Thompson v. Miller, 2 Stew. (Ala.) 470; Dixon v. Mason, 68 Ga. 478; Russell v. McDougall, 3 Smedes & M. (Miss.) 234; Atkinson v. Atchison, T. & S. F. R. Co., 81 Mo. 50; Salz v. First Nat. Bank of Ft. Atkinson, 60 Wis. 246, 19 N. W. 43; Hop Bitters Mfg. Co. v. Warner, 28 Fed. 577. See, also, supra, § 440. The court may, at a subsequent term, amend its decree by correcting the name of a party, where it clearly appears from the pleadings and from the decree itself that the name given was inserted in place of another by some clerical error, and no question was raised as to the rights of the person whose name was given. Davenport v. Kirkland, 156 Ill. 169, 40 N. E. 304. A decree cannot be amended after the term to make it appear that it was rendered on a second amended bill, changing the cause of action, instead of upon an original bill, where such amendment is one of substance. Adams v. Gill, 158 Ill. 190, 41

N. E. 738.

See

1211 Barbour, Ch. Pr. 350; Clark v. Hall, 7 Paige (N. Y.) 382. Tomlins v. Palk, 1 Russ. 475; Lawrence v. Cornell, 4 Johns. Ch. (N. Y.) 546; Wallis v. Thomas, 7 Ves. 292; Pickard v. Mattheson, 7 Ves. 293.

122 Forquer v. Forquer, 19 Ill. 68; Stringer v. Anderson, 23 W. Va. 482; Hop Bitters Mfg. Co. v. Warner, 28 Fed. 577. See, also, Hurd v. Goodrich, 59 Ill. 450; Lilly v. Shaw, 59 Ill. 72; Cooley v. Scarlett, 38 Ill. 316. While a court will not vary or alter an enrolled decree in a material point without a bill of review or a rehearing, it will, upon petition, amend its enrolled decree, when an amendment is necessary to give full expression to its judgment, and is matter which would, without doubt, have been incorporated in the decree when made if attention had been called to it. Dorsheimer v. Rorback, 24 N. J. Eq. 33; Jones v. Davenport, 45 N. J. Eq. 77, 17 Atl. 570; Lynde v. Lynde, 54 N. J. Eq. 473, 35 Atl. 641.

ing for further directions upon points of equity reserved, the court cannot materially alter or vary the first decree.123

§ 730. Power to modify manner of enforcement.

While a court has no power to modify a final decree after the term at which it was rendered, in so far as it determines the rights of the parties, it nevertheless retains the inherent power to modify, by a subsequent order, the time of its enforcement, or the manner in which it shall be enforced.124

731. Applications to amend or modify decrees.

Applications to the court to rectify decrees should be made. within a reasonable time; otherwise they will not be granted.125 The application to rectify or amend a decree before enrollment, in matters of form, or where there is a clear mistake, may be made either by motion or upon petition.126 Notice of the proposed amendment should be given to the opposite party.127

123 1 Barbour, Ch. Pr. 351; Creuze v. Hunter, 2 Ves. Jr. 164; Gardner v. Dering, 2 Edw. Ch. (N. Y.) 131; Parnell v. Price, 14 Ves. 502; Le Grand v. Whitehead, 1 Russ. 309. See, for hearing on further directions, post, §§ 740, 741. Where, by inadvertence, several matters of import in a case, and necessary to its complete adjudication, and which should have been embodied in the decree, were omitted, the court, upon application by petition or motion, will rectify the error and embody the omitted matters in the final adjudication by a supplemental decree. Oliver Finnie Grocery Co. v. Bodenheimer, 77 Miss. 415, 27 So. 613; Clark v. Hall, 7 Paige (N. Y.) 382; Jarmon v. Wiswall, 24 N. J. Eq. 68; Pipkin v. Haun, Freem. Ch. (Miss.) 254.

124 Mootry v. Grayson, 104 Fed. 613; Turner v. Indianapolis, B. & W. Ry. Co., Biss. 380, Fed. Cas. No. 14,259; Turner v. Farmers' Loan & Trust Co., 106 U. S. 552; Farmers' Loan Co. v. Oregon Pac. R. Co., 28 Or. 44, 40 Pac. 1089; Monkhouse v. Corporation of Bedford, 17 Ves. 380; Edwards v. Cunliffe, 1 Madd. 287; Dawes v. Thomas, 4 Gill (Md.) 333; Spann v. Spann, 2 Hill Eq. (S. C.) 152; Baird v. Shepherd, 2 Ohio, 261; Malone v. Marriott, 64 Ala. 486; Cochran v. Miller, 74 Ala. 50; Bound v. South Carolina Ry. Co., 55 Fed. 186. While the court has no power, after enrollment, to amend the decree without a rehearing, it retains the power to modify, by a subsequent order, the time of its enforcement. Cadotte v. Cadotte, 120 Mich. 667, 79 N. W. 932.

125 1 Barbour, Ch. Pr. 352; Rogers v. Rogers, 1 Paige (N. Y.) 188. 126 1 Barbour, Ch. Pr. 351; Clark v. Hall, 7 Paige (N. Y.) 382; Wallis

As to the manner of rectifying, it is laid down that, where the alteration asked for is merely consequential upon the decree itself, or the addition of some direction which has been omitted, the omission will be supplied by a distinct order, without altering or interlining the decree itself. But in cases of error in the direction of the decree, where alteration cannot be made by a supplemental order, the court will direct the clerk to attend with his book, and make the alteration in open court, which the chancellor will countersign with his initials.128 A decree may be amended by a nunc pro tunc entry, so as to make it speak the truth;129 but this cannot be done after the term, except on evidence which is a matter of record or quasi record,130

§ 732. Opening decrees.

Efforts to reopen a final decree are not encouraged.131 The applicant must not be guilty of laches.132 As a rule, a court may set aside its decree at the same term in which it was en

v. Thomas, 7 Ves. 292; Pickard v. Mattheson, 7 Ves. 293; Brown v. Sansome, 9 Price, 479; Grey v. Dickenson, 4 Madd. 464; Murray v. Blatchford, 2 Wend. (N. Y.) 221; Rogers v. Rogers, 1 Paige (N. Y.) 188; Long v. Cole, 72 N. C. 20; Dorsheimer v. Rorback, 24 N. J. Eq. 33; Jarmon v. Wiswall, 24 N. J. Eq. 68.

127 Bryant v. Vix, 83 Ill. 11; Palmer v. Harris, 100 Ill. 276; Berry v. Innes, 35 Mich. 189; Doggett v. Emerson, 1 Woodb. & M. 1, Fed. Cas. No. 3,961; Swift v. Allen, 55 Ill. 303. When the amendment of a decree lessens the amount of a decree against him, defendant cannot complain that it was allowed without notice to him, though correct practice might require that he should be notified thereof. Palmer v. Harris, 100 Ill. 276.

128 Hawker v. Buncombe, 2 Madd. 391; 1 Barbour, Ch. Pr. 352; Tomlins v. Palk, 1 Russ. 476; Lane v. Hobbs, 12 Ves. 458; Clark v. Hall, 7 Paige (N. Y.) 382; Lovejoy v. Irelan, 19 Md. 56.

129 Hershy v. Baer, 45 Ark. 240.

130 Kemp v. Lyon, 76 Ala. 212.

131 Lockwood v. Cleveland, 20 Fed. 164; Barry v. Barry, 1 Md. Ch. 20.

132 Larue's Heirs v. Larue's Ex'rs, 3 J. J. Marsh. (Ky.) 156; Barry v. Barry, 1 Md. Ch. 20.

tered.133 In most jurisdictions, after the term at which the decree was rendered, the court has no power to set it aside.134 Decrees by consent, obtained without fraud or misrepresentation, can only be set aside by consent.135

If the party against whom a decree is rendered does not ap peal from the same within the time limited by law, the opposite party proceeds to enforce the same by process of the court. It is a general principle that a court of equity has power to issue all processes necessary to carry its decrees into effectual execution.136 The power of the court for this purpose, like that of compelling appearance or answer, was originally confined to the process of contempt. If the order disobeyed was for appearance and answer, disobedience was a contempt of the subpoena; if for the performance of the decree, it was a contempt of another writ, issued under the great seal, termed a "writ of execution." In either case the process of contempt was by the five successive steps of attachment, attachment with proclamations, writ of rebellion, sergeant at arms, and sequestration, or, in the case of a privileged person, by sequestrations nisi and absolute, and, in that of a corporation, by distringas and sequestration. The only differences were that an attachment for nonperformance of a decree was not, like an attachment on mesne process, a bailable writ; that, in the particular instance of a decree for delivering up an estate,

133 Doss v. Tyack, 14 How. (U. S.) 297.

134 Cameron v. McRoberts, 3 Wheat. (U. S.) 591; Fries v. Fries, 1 MacArthur (D. C.) 291; Brady v. Hamlett, 33 Ark. 105; Whiting v. Bank of United States, 13 Pet. (U. S.) 6; McGregor v. Vermont Loan & Trust Co., 104 Fed. 709, citing approvingly Beach, Mod. Eq. Pr. § 983. United States Equity Rule 88 makes an exception where no appeal lies to the supreme court of the United States. Moelle v. Sherwood, 148 U. S. 21.

135 White v. Walker, 5 Fla. 478. See Hammond v. Place, Har. (Mich.) 438. See supra, §§ 432, 704, 711.

136 1 Barbour, Ch. Pr. 440, 441; Ludlow v. Lansing, Hopk. Ch. (N. Y.) 231; Durbin v. Durbin, 71 Ill. App. 51.

the court might effectuate its own order by issuing a writ of assistance to the sheriff, commanding him to put the complainant in possession; and that, on a decree for payment of money, the receipts under a sequestration, though intended as a means of punishment, might indirectly operate as a performance." Statutes and rules of court are frequently found relative to the enforcement by the court of its decree.138

§ 734. Executions.

137

The first step to enforce the execution of a decree, if the party against whom it is issued refuses or neglects to obey it, is a writ of execution, which is a process of the court of chancery, under its seal, reciting a decree of the court, or the substance or some part thereof, and requiring obedience to so much of the ordering part as is recited, and as it concerns the party to perform.139

Statutes in most jurisdictions provide for the issuance of an execution against the property of the defendant, which is delivered to an officer, who levies thereon, and sells the same, pursuant to said statute, and thus realizes, in the event of a money decree, the sum due to the complainant. The practice in regard to such executions is regulated by the statutes and rules of court of the particular jurisdiction. Where the decree was other than for the payment of money, under the English chancery proceedings, before the party could be proceeded

187 Adams, Eq. 393. Mr. Foster, in his valuable and exhaustive wor on Federal Practice, classifies the method of enforcement of decrees and orders under seven heads: (1) By writ of execution; (2) by compelling obedience by attaching the delinquent party for contempt; (3) by the writ of sequestration; (4) by the writ of assistance; (5) by the ac tion of the court, through the medium of a master; (6) by the action of the court by means of a receiver; and (7) by bills to carry the decrees into execution. See Foster, Fed. Pr. §§ 339-349a, where the enforcement of decrees and orders, and the subject of contempts, are considered by the learned writer in his usually clear and concise style. See, for enforcement of decree or order by contempt proceedings, supra, 534-559. For bills to carry decrees into execution, see post, § 959. 138 See United States Equity Rule 10; Rev. St. Ill. c. 22, § 47. 189 1 Barbour, Ch. Pr. 441.