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.

The

Efforts to reopen a final decree are not encouraged.131 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.

182 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.184 Decrees by consent, obtained without fraud or misrepresentation, can only be set aside by consent.135

§ 733. Enforcement of a decree.

If the party against whom a decree is rendered does not appeal 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.

186 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.

against as for a contempt for not performing the decree, a writ of execution commanding him to obey the decree was required. to be issued and served upon him. If the party neglected to perform the decree, the court, upon affidavit of service of the writ of execution, and of the party's disobedience, would make an order that he be proceeded against by the ordinary process of contempt. 140

§ 735. Sequestration.

The writ of sequestration was one of the oldest writs in chancery, and empowered sequestrators to take the goods and personal estate and enter on the real estate of the defendant, and sequester the rents and profits, and retain or pay over the same as the court might direct, until the defendant performed the decree.141 Writs of sequestration are rarely used in modern practice. If the decree is for the payment of money, the usual process is a writ of execution; if for the performance of a personal act, process of contempt is employed. Where a writ of execution is allowable, manifestly there would be little occasion for sequestration, and the modern use of proceedings by attachment for contempt are usually sufficient to enforce the performance of any act required of the defendant. The process of sequestration, although it has gone almost out of use since the statutes allowing an ordinary execution against the real, as well as the personal, property of the party to enforce the payment of money decreed by a court of chancery, may be properly resorted to as a means of enforcing the performance of other decrees where an attachment cannot be served, or where the defendant chooses to remain in prison after his commitment for contempt of the court. It would seem, also, that choses in action, under certain circumstances, may be effectually seized by sequestrators, although they cannot be seized and sold by the sheriff under execution.142

140 1 Barbour, Ch. Pr. 441; Blake, Ch. Pr. 168.

141 Adams, Eq. 324; 1 Hoffman, Ch. Pr. 145-160; Foster, Fed. Pr. § 347. See United States Equity Rules 7, 8.

142 Hosack v. Rogers, 11 Paige (N. Y.) 603. See, also, Keighler v.