tions and proofs, and cannot be based on a fact not put in issue by the pleadings.49 The principle is authoritatively settled that a decree or judgment on a matter outside of the issue raised by the pleadings is a nullity, and is nowhere entitled to respect as a judicial sentence.50 It is said that a consent decree is not, in a strict legal sense, a judicial sentence, but is in the nature of a solemn contract, and is, in effect, an admission by the parties that the decree is a just determination of their rights upon the real facts of the case, had such been proved.51 It is held that a consent decree will be valid and binding upon the parties if its provisions fall within the general scope of the case made by the pleadings.52 Under a

that the agreement had been made, but that it was not beneficial to the infants concerned, or, for some other reason, ought not to have been made. See Walsh v. Walsh, 116 Mass. 377." Franklin Sav. Bank v. Taylor, 53 Fed. 854. In Illinois it is held that to render a decree by consent without evidence, against minors, is always error. Bennett v. Bradford, 132 Ill. 269, 24 N. E. 630. See, also, Daingerfield v. Smith, 83 Va. 81, 1 S. E. 599. Though a decree appearing on its face to have been entered by consent is erroneous as to infant parties, it is nevertheless valid and binding as to all the parties who were at the time sui juris. Cox v. Lynn, 138 Ill. 195, 29 N. E. 857.

49 Chapman v. Kane, 97 Ill. App. 567; Bedford v. Williams, 5 Cold. (Tenn.) 202; Reynolds v. Stockton, 43 N. J. Eq. 211, 10 Atl. 385; Crocket v. Lee, 7 Wheat. (U. S.) 522; Tripp v. Vincent, 3 Barb. Ch. (N. Y.) 613; Iglehart v. Armiger, 1 Bland (Md.) 519; Britton v. Brewster, 2 Fed. 160; Ahl's Appeal, 129 Pa. 49, 18 Atl. 477; Ball v. Serum, 85 Ill. App. 560; Parkhurst v. Race, 100 Ill. 558; Penn v. Fogler,

182 Ill. 761, 55 N. E. 192. See supra, § 87.

50 Jones v. Davenport, 45 N. J. Eq. 77, 17 Atl. 570; Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014; Reynolds v. Stockton, 43 N. J. Eq. 211, 10 Atl. 385.

51 Gibson, Suit in Ch. § 558, cited approvingly in Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014.

52 Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014, quoting ap provingly Beach, Mod. Eq. Pr. § 792. Parties to a suit have a right to agree to anything they please in reference to the subject-matter of their litigation, and the court, when applied to, will ordinarily give effect to their agreement if it comes within the general scope of the case made by the pleadings. Pacific Railroad v. Ketchum, 101 U. S. 297, quoted with approval in Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014. An agreement to refer a suit pending to an arbitrator, and that a judg

prayer for general relief, any decree warranted by the allegations of the bill may be supported.53 The bill and answer need not point out, in detail, the means which the court should adopt in giving relief. Under the general prayer for relief, the court will often extend relief beyond the specific prayer, and not exactly in accordance with it. The complainant may, under the prayer for general relief, have special relief other than that prayed for, if consistent with the case made by the bill.55 As a general rule, where a complainant prays for only specific relief, he cannot obtain other relief than that prayed for.56 Under a prayer for special relief, appropriate relief of the same character, but less extensive than that prayed for, may be granted.57

ment shall be entered in the cause in conformity with his decision, will justify the entry of a judgment accordingly, which judgment will be binding upon the court as a judgment by consent. Bank of Monroe v. Widner, 11 Paige (N. Y.) 533; Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014. A decree rendered by consent of the parties is not void as between themselves because it does not give to each just what the petition called for, and what ought, as a matter of right, to have been given to each of them. Schermerhorn v. Mahaffie, 34 Kan. 108, 8 Pac. 199; Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014. See, also, Fletcher v. Holmes, 25 Ind. 458.

58 Story, Eq. Pl. §§ 40-42; Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390; Walker v. Converse, 148 Ill. 622, 36 N. E. 202; Burnett v. Boyd, 60 Miss. 627; Barnes v. Strong, 54 N. C. 100; Chambers v. Kunzman, 59 N. J. Eq. 433, 45 Atl. 599; Hiern v. Mill, 13 Ves. 119; Driver v. Fortner, 5 Port. (Ala.) 10; Rice v. Eiseman, 122 Ala. 343, 25 So. 214; Gibbs v. Davies, 168 Ill. 205, 48 N. E. 120.

54 Walden v. Bodley, 14 Pet. (U. S.) 156.

55 Coggswell & Boulter Co. v. Coggswell (N. J. Eq.) 40 Atl. 213, citing Wilkin v. Wilkin, 1 Johns. Ch. (N. Y.) 117; Miller v. Jamison, 24 N. J. Eq. 41; 2 Daniell, Ch. Pl. & Pr. (6th Am. Ed.) 380; Boon's Heirs v. Chiles, 8 Pet. (U. S.) 532. See supra, § 77.

56 Simms v. Guthrie, 9 Cranch (U. S.) 19; Halsted v. Meeker's Ex'rs, 18 N. J. Eq. 136; Dixon's Adm'r v. Campbell, 3 Dana (Ky.) 603; Loggie v. Chandler, 95 Me. 220, 49 Atl. 1059. See, however, Miami Exporting Co. v. Bank of United States, Wright (Ohio) 249, 257.

57 Camden Horse R. Co. v. Citizens Coach Co., 31 N. J. Eq. 525. See, also, Street v. Chicago Wharfing & Storage Co., 157 Ill. 605, 41 N. E. 1108; Maxwell v. Smith, 86 Tenn. 539, 8 S. W. 340.

$ 713. Who may take advantage of decrees.

A party to a suit may sometimes have the benefit of a decree without appearing at the hearing. Thus, where a decree in a suit by a residuary legatee against the trustees and executors, and against other residuary legatees who are out of the jurisdiction of the court, directed the usual accounts, the court ordered, upon the application of the last-named persons, who, though still abroad, submitted to be bound by the decree, that they should be at liberty to enter their appearance, and should have the same benefit of the decree as if they had put in their answer and had appeared at the hearing.58 The court will sometimes order that a party coming in under a decree obtained by another person shall be at liberty to prosecute such decree, if the complainant delay prosecuting the decree.59 Under the English chancery practice, if the complainant was entitled to relief against both defendants, and one defendant ought to indemnify the other defendant, who was decreed to pay the complainant, the court gave liberty to that defendant to prosecute the decree against the other; as where the surety paid money, the principal was required to indemnify the surety, and the court made the decree over.60 As a general rule, motions which have for their object to give effect to decrees and orders should be confined to cases where the order which is to be made upon the motion arises out of recent proceedings, concerning which there can be no doubt.61

58 1 Barbour, Ch. Pr. 335; Banister v. Way, 2 Dickens, 686. For case of this character, see Farrar v. Wyatt, 5 Madd. 449.

59 1 Barbour, Ch. Pr. 336; Torin v. Fowke, 1 Dickens, 235; Sheppard v. Messider, 2 Dickens, 797; Sims v. Ridge, 3 Mer. 458; Dixon v. Wyatt, 4 Madd. 392; Edmunds v. Acland, 5 Madd. 31; 1 Newland, Ch. Pr. 321. In a creditor's suit, residuary legatees, upon motion, obtained an order that they should be at liberty to go before the master in taking the accounts, although they were not parties. 1 Barbour, Ch. Pr. 336; 1 Newland, Ch. Pr. 321. Leave has been given, upon petition, to the purchaser of the interest of a party to attend the master in making the inquiry directed by the decree. 1 Barbour, Ch. Pr. 336; Toosey ▼ Burchell, Jac. 159.

60 1 Barbour, Ch. Pr. 336; Walker v. Preswick, 2 Ves. Sr. 622. 61 1 Barbour, Ch. Pr. 333; Shipbrooke v. Hinchinbrook, 13 Ves. 393.

§ 714. Who bound by decrees.

It is a general rule that all who are parties to a decree are bound by it, and that those who are not parties are not bound.62

§ 715. Frame of decrees.

Decrees, in general, consist of three parts: (1) The caption and title; (2) the recitals; and (3) the ordering part; to which may sometimes be added (4) the declaratory part, which, when made use of, generally precedes the ordering part. 63

§ 716. Caption of decree.

Where it is material to either party, or unless otherwise directed by the court, the caption should correspond with the time of the actual entry of the decree. And where a decree is entered nunc pro tunc as of a previous date, or otherwise, it should appear by some entry in the minutes of the decree, or in the minutes of the proceedings in the cause, or in both, at what time the decree was actually entered. The caption is followed by the title of the cause. The parties, both complainant and defendant, should have the same titles in the decree as they have in the bill.65

§ 717. Recitals in decrees.

64

Formerly decrees contained recitals of the pleadings in the This practice, however, has in most jurisdictions been

case.

621 Barbour, Ch. Pr. 334; Brown v. Wyncoop, 2 Blackf. (Ind.) 230. 631 Barbour, Ch. Pr. 337.

041 Barbour, Ch. Pr. 337; Whitney v. Belden, 4 Paige (N. Y.) 140; Barclay v. Brown, 7 Paige (N. Y.) 245.

651 Barbour, Ch. Pr. 388. See Jones v. Janes, 6 Leigh (Va.) 167; Church v. Chambers, 3 Dana (Ky.) 274. The caption of an order is not a necessary part of the record, and the omission of the name of the defendant therein is no objection, where it appears by the record that he was a party. Jones v. Janes, 6 Leigh (Va.) 167, 173. Where the term "defendants" is used in a decree without specifically naming any one of them, it will be held to comprise all who are made parties, as such, to the suit. Dousman v. Hooe, 3 Wis. 466.

(737)

66

abolished, as tending to too great prolixity. In stating the evidence read in the cause, under the modern practice, it is merely stated generally, without specifying the particular depositions which have been made use of. The recitals should not be argumentative, but should state merely the conclusions of law and fact.67 It is not necessary to state in the decree that all the preliminary steps towards maturing the cause for hearing were taken; it being intended, where the cause is set for hearing, that it has been done regularly, unless the party attempting to impugn the decree shows the contrary.s

718. Facts to support decree.

A decree in chancery, unlike a judgment at law, must find

661 Barbour, Ch. Pr. 338.

67 Dey v. Dunham, 2 Johns. Ch. (N. Y.) 182. The reasons assigned for the decree are not part of the decree. Kerchner v. Kempton, 47 Md. 568. The recitals of a decree which is directly impeached for fraud or surprise in its procurement are subject to attack by an original bill in the nature of a bill of review. Springston v. Morris, 47 W. Va. 50, 34 S. E. 766; Black, Judgm. § 238; Barton, Ch. Pr. (2d Ed.) 841.

68 1 Barbour, Ch. Pr. 338; Quarrier v. Carter's Representatives, 4 Hen. & M. (Va.) 242. Although it will be presumed that the cause was regularly matured for hearing when the decree was entered, it is the better practice that the decree should show on its face such fact. Riggs v. Lockwood, 12 W. Va. 133. See, also, Linsey v. McGannon, 9 W. Va. 154; Quarrier v. Carter's Representatives, 4 Hen. & M. (Va.) 242; Hartfield v. Brown, 8 Ark. 283; Pillow v. Wade, 31 Ark. 678, holding that the decree should set out the premises on which it is predicated. The form of decrees is frequently regulated by rule or statute. United States Equity Rule 86 provides that, in drawing up decrees and orders, neither the pleadings, nor any part thereof, nor the master's report, nor any other prior proceeding, shall be recited or stated in the decree or order, but that the decree or order shall begin, in substance, as follows: "This cause came on to be heard [or to be further heard, as the case may be] at this term, and was argued by counsel, and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz.: [Here insert the decree or order]." The court may occasionally state in the decree conclusions of fact as well as of law. Putnam v. Day, 22 Wall. (U. S.) 60. See Whiting v. Bank of United States, 13 Pet. (U. S.) 6, for statement of English practice, and practice in federal courts. See, also, for practice in the federal courts, Foster, Fed. Pr. § 325; Beach, Mod. Eq. Pr. § 807.