17 Ves. 462; Moggridge v. Thackwell, 1 Ves. Jr. 464. When the court has once adopted the principle of taxation, as between solicitor and client, in favor of a particular individual, or of a particular class, it will in its future proceedings, whenever it becomes necessary to direct a further taxation of costs, direct them to be taxed on the footing of the former taxation. But it is to be observed that it is only where the former direction for taxation has been made at a hearing of the cause that the court will consider itself bound by it at the subsequent hearing, and that it will not do so when the former direction as to costs was made upon petition and by consent. 2 Barbour, Ch. Pr. 338.

(779)

CHAPTER XXXIX.

REHEARING.

§ 746. In general.

Under the English chancery practice, after a decree was en tered, and before it was enrolled, the proper method of having it rectified, otherwise than upon the consent of all parties, or in respect of matters which are of course, was by applying to have the cause reheard. If any important error had occurred, or anything material had been omitted in the decree, a rehearing was applied for. The distinction between applications for rehearings in appellate courts and those in courts of original jurisdiction has been thus pointed out by the supreme court of the United States: "By the established rules of chancery practice, * ** a 'rehearing,' in the sense in which that term is used in proceedings in equity, cannot be allowed after the decree is enrolled. If the party desires it, it must be applied for before the enrollment. But no appeal will lie to the

11 Barbour, Ch. Pr. 352; Gardner v. Dering, 2 Edw. Ch. (N. Y.) 131; Brookfield v. Bradley, 2 Sim. & S. 64; Baxter v. Wilson, 2 Atk. 152; Robinson v. Taylor, 1 Ves. Jr. 44; Taylor v. Popham, 15 Ves. 72; Coleman v. Franklin, 26 Ga. 368; Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. 197; Pfeltz v. Pfeltz, 1 Md. Ch. 455; Thompson v. Goulding, 5 Allen (Mass.) 81; Brumagin v. Chew, 19 N. J. Eq. 337; Mallery v. Quinn, 88 Md. 38, 40 Atl. 1079; Finlayson v. Lipscomb, 15 Fla. 558. A decree may be corrected or amended on petition or motion as to clerical errors, or by the insertion of any matter which would have been inserted as a matter of course if the same had been asked for at the hearing. Clark v. Hall, 7 Paige (N. Y.) 382; Gardner v. Dering, 2 Edw. Ch. (N. Y.) 131; Wallis v. Thomas, 7 Ves. 292; Pickard v. Mattheson, 7 Ves. 293. But if any error has occurred, or anything material has been omitted from a decree, which it is not perfectly a matter of course to correct or insert, then a rehearing should be asked. Gardner v. Dering, 2 Edw. Ch. (N. Y.) 131; Brookfield v. Bradley, 2 Sim. & S. 64.

proper appellate tribunal until after it is enrolled, either actually or by construction of law, and consequently the time for a rehearing must have gone by before an appeal could be taken. In the house of lords in England, to which the appeal lies from the court of chancery, a rehearing is altogether unknown. A reargument, indeed, may be ordered, if the house desires it for its own satisfaction; but the chancery rules in relation to 'rehearings,' in the technical sense of the word, are altogether inapplicable to the proceedings on the appeal. Undoubtedly this court may and would call for a reargument where doubts are entertained, which it is supposed may be removed by further discussion at the bar; and this may be done after judgment is entered, provided the order for reargument is entered at the same term. But the rule of the court is this: that no reargument will be heard in any case after judgment is entered, unless some member of the court who concurred in the judgment afterwards doubts the correctness of his opinion, and desires a further argument on the subject; and when that happens, the court will of its own accord apprise the counsel of its wishes, and designate the points on which it desires to hear them."2 In the United States, generally, there is no enrollment of decrees. Filing the decree for record is equivalent to enrollment. After a decree has been spread upon the record, a petition for a rehearing will not lie, and the whole matter is be

2 Brown v. Aspden, 14 How. (U. S.) 26; Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. 197. For practice in federal courts relative to rehearings, see Foster, Fed. Pr. § 665; Beach, Mod. Eq. Pr. §§ 832-848. 3 Hughs v. Washington, 65 Ill. 249.

See Cochran v. Couper, 2 Del. Ch. 27. The general equity rules of the federal courts contain no provision for the enrollment of decrees. By the former practice there was not, customarily, any enrollment, if nothing was determined in the case, that is to say, if no decree or order had been entered which adjudicated any right or advantage to one party or the other upon the matter of the pleadings. The essential purpose of the practice of enrollment was to provide a permanent memorial, upon which the rights of the parties as adjudicated could be thereafter more safely preserved. Consolidated Store Service Co. v. Dettenthaler, 93 Fed. 307. See, also, Blain v. Home Ins. Co. of New York, 30 Fed. 667.

yond the control of the chancellor, unless it be on a bill of review, or a bill to impeach the decree, or some other such subsequent proceeding. A rehearing may be applied for, whether the decree or order is made upon the hearing of the cause, or of a demurrer or plea, or upon further directions, or upon exceptions. A decretal order can, in fact, be discharged in no other way. In some jurisdictions, interlocutory decrees will be reheard upon petition."

4 Hughs v. Washington, 65 Ill. 249; Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. 197; Brown v. Apsden, 14 How. (U. S.) 26; Pfeltz v. Pfeltz, 1 Md. Ch. 455; Clapp v. Thaxter, 7 Gray (Mass.) 384. There are some exceptions to this rule. Cases do not come within it where clerical errors, mistakes in computation, or irregularity in making up the record have occurred, or where a final decree has been made on default of a party through the negligence or mistake of his solicitor, or by reason of want of notice to him of the pendency of the suit. Thompson v. Goulding, 5 Allen (Mass.) 81, citing Kemp v. Squire, 1 Ves. Sr. 205; Deekman v. Peck, 3 Johns. Ch. (N. Y.) 415; Clark v. Hall, 7 Paige (N. Y.) 382; Millspaugh v. McBride, 7 Paige (N. Y.) 509. United States Equity Rule 88 regulates proceedings in the federal courts on rehearings, providing that the petition therefor shall contain the ground upon which the rehearing is applied for, and shall be signed by counsel, and the facts therein stated, if not apparent on the record, be supported by oath, and that no rehearing shall be granted after the term at which the final decree shall have been entered and recorded, if an appeal lies to the supreme court, but, if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. See, for construction of this rule, Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31; Sheffey v. Bank of Lewisburg, 33 Fed. 315; Glenn v. Noonan, 43 Fed. 403; Halsted v. Forrest Hill Co., 109 Fed. 820; Graham v. Swayne, 109 Fed. 366; Goddard v. Ordway, 101 U. S. 745; Roemer v. Simon, 91 U. S. 149. As an appeal in all cases, either to the supreme court or to the circuit court of appeals, is now provided for, it would seem to follow that in all cases an application for a re hearing must be made during the term at which a final decree is entered. First Nat. Bank of Plattsmouth v. Woodrum, 86 Fed. 1004, citing Shiras, Eq. Pr. (2d Ed.) 87.

51 Barbour, Ch. Pr. 352.

• 1 Barbour, Ch. Pr. 353. Where the order is made upon a petition, a rehearing should be applied for. 1 Barbour, Ch. Pr. 353; 2 Smith, Ch. Pr. 37; Bishop v. Willis, 2 Ves. Sr. 113.

7 Purdie v. Jones, 32 Grat. (Va.) 827: Sims v. Sims, 94 Va. 580, 27

1

§ 747. Time for application.

Under the English chancery practice, as long as there had been no enrollment, there was no limitation as to the time within which it was necessary to apply for a rehearing. In most jurisdictions in the United States, including the federal courts, at the expiration of the term the decree becomes final, and a petition for a rehearing cannot be filed after the expiration of such term. Where there is a rule of court regulating rehearings, the application must be made in due form, and according to the established practice of the court.10 Where the application is based on newly-discovered evidence, the exercise of reasonable diligence before the hearing to procure such evidence, and the facts and circumstances constituting such diligence, must be shown.11

A rehearing can only take place for the purpose of altering the decree upon grounds which existed at the time when the decree was pronounced.12 It is held that a rehearing should only

S. E. 436; Hyman v. Smith, 10 W. Va. 298; Spilman v. Gilpin, 93 Va. 698, 25 S. E. 1004. See, however, 1 Barbour, Ch. Pr. 353.

81 Barbour, Ch. Pr. 357. See Carew v. Johnston, 2 Schoales & L. 300; Knight v. Young, 2 Ves. & B. 186; Mills v. Banks, 3 P. Wms. 2; Fournier v. Paine, 3 Mylne & K. 207; White v. Lisle, 3 Swanst. 351; Brophy v. Holmes, 2 Moll. 1.

› Gardner v. Dwelling House Ins. Co., 44 Ill. App. 156; Delahay v. McConnel, 5 Ill. 156; Roemer v. Simon, 91 U. S. 149; Hodges v. Davis, 4 Hen. & M. (Va.) 400; Pfeltz v. Pfeltz, 1 Md. Ch. 455; Glenn v. Dimmock, 43 Fed. 550; Burch v. Scott, 1 Gill & J. (Md.) 393. The matter is frequently regulated by statute or rule of court. See United States Equity Rule 88. For practice in various jurisdictions, see Woodson's Ex'r v. Leyburn, 83 Va. 343, 3 S. E. 873; Canerdy v. Baker, 55 Vt. 578; Randall v. Peckham, 11 R. I. 600; Roberts v. Edmundson, 4 Smedes & M. (Miss.) 730; Foster, Fed. Pr. § 665.

101 Barbour, Ch. Pr. 360; Gardner v. Dering, 2 Edw. Ch. (N. Y.) 131; Cotton v. Parker, Smedes & M. Ch. (Miss.) 125.

11 McLeod v. City of New Albany, 24 U. S. App. 601, 66 Fed. 378; Gillette v. Bate Refrigerating Co., 12 Fed. 108; Harman v. Lewis, 24 Fed. 530; Armstead v. Bailey, 83 Va. 242, 2 S. E. 38.

12 1 Barbour, Ch. Pr. 354; Bowyer v. Bright, 13 Price, 316.