but may apply, as soon as he thinks fit, to reverse it. (Richmond v. Tayleur, 1 P. W. 736.)

Lord Hardwicke said, that where a decree is made by consent of counsel, there lies not an appeal or rehearing, though the party did not really give his consent; but his remedy is against his counsel. But if such decree was by fraud or covin, the party may be relieved against it, not by rehearing or appeal, but by original bill. (Bradish v. Gee, 1 Amb. 229.)[a] In Harrison v. Rumsey, 2 Ves. 488, the Court refused to set aside a decree made by consent. In Butterfield v. Butterfield, 1 Ves. 133, a decree in a cause, which, it appears, was heard by consent, was reversed on appeal. In Wood v. Griffith, 1 Mer. 35, and Append. 720, a question is raised, but not decided, how far a consent to an order subsequent to the decree, prevents an appeal or rehearing. The Court said, if the appellant, instead of putting the other party to expense, thinks proper to decline opposition, and consents to measures which the Court would enforce, it is too much to say that such consent barred the appeal. If at the time he intended not to appeal, that might place it in a different view.

As a general rule, neither an appeal nor a rehearing will lie on a question whether costs should have been given or not. (Taylor v. Popham, 15 Ves. 72. Jenour v. Jenour, 10 Ves. 562.)[b] It would appear, from what Sir S. Romilly said, and from Wirdman v. Kent, 1 Bro. C. C. 140, that not only can there be no appeal for costs alone, but that if other subjects are appealed from, and the Court even vary the decree, and the subject of costs forms the gravamen of the appeal, and the variation might have been [*21] without an appeal, the Court *will dismiss the appeal, unless, as in the case cited, the payment of costs, in the decree complained of, is to be considered as relief granted by the Court. In Attorney General v. Butcher, 4

[a] French v. Shotwell, 6 Johns. Ch. Rep. 564. So, where, upon the hearing of the cause, the counsel for the defendants abandoned the defence, after hearing the opening argument in behalf of the complainants, the Court refused to grant a rehearing, upon the ordinary certificate of counsel. To obtain a rehearing, under such circumstances, the defendant will be required to show a violation of duty on the part of the counsel, or that he had clearly mistaken the law or the facts. Decarters v. La Farge, 1 Paige, 574. And as a general rule, an order or decree in Chancery, entered by consent, is not the subject of an appeal or rehearing. Atkinson v. Manks, 1 Cowen, 691.

[] A rehearing is not granted for costs only, except in special cases. Travis v. Waters, 1 Johns. Ch. Rep. 48; Eastburn v. Kirk, 2 Johns. Ch. Rep. 17.

Russ. 180, it was decided, that where there there is a fair and substantial question to be argued on appeal, the decree may be varied as to costs, though affirmed in every other point; although it will not be varied as to costs where the point, which is presented on the ground of appeal, has no substance,

Although, as a general rule, there can be no appeal for costs only,[a] the Court has held that the rule may be relaxed under particular circumstances. In Cowper v. Scott, 1 Eden, 17, heard before Lord Northington, it was held, that an appeal, or rehearing for costs only, might be allowed under particular circumstances. And in Owen v. Griffith, Amb. 520, 1 Ves., Lord Hardwicke said that the rule that no appeal lies for costs is sometimes departed from. (See cases in note.) And in Metcalf v. Hervey, 1 Ves. 250, Lord Hardwicke allowed an appeal for costs, where Mr. Justice Abney (sitting for the Master of the Rolls) only gave principal and interest to an incumbrancer by elegit; observing, that the rule that no appeal should be allowed for costs merely, ought not to be strictly adhered to, but if a sound distinction from the rule could be made, it ought to be allowed; at the same time adding, that, if it was laid open generally that an appeal might lie for costs, it would cause that general inconvenience to which a particular inconvenience ought to give way. The result of the authorities appears to warrant the conclusion, that the general rule that no appeal lies simply for costs, is only departed from in cases of apparent mistake, and not in those involving merits.

The general rule applies only to cases where the question *is, whether costs should be given or not; [ *22 and in a case where the Court, having given costs, had applied the fund of a party to a payment to which it ought not to have been applied, the party was held entitled to appeal, or to present a petition of rehearing against such decision. (Taylor v. Topham, 15 Ves. 72.) So where

[a] Lewis v. Wilson, 1 McCord's Chan. Rep. 210; McMillan v. Adm'rs of Eldridge, Harp. Eq. Rep. 260; Ashby v. Kiger, 3 Rand. 165; Lyles v. Lyles, 1 Hill's Ch. Rep. 76. But, if a party appeals, having a substantial ground of appeal, and brings in the question of costs along with it, he may succeed with respect to the costs, though he fail on the substantial ground of the appeal. But a point, which, on the slighest consideration, appears to have no substance, is not to be put forward, merely for the purpose of covering an appeal on the question of costs. Attorney General v. Butcher, 4 Russ. 180.

Eng. Chan. Reps. iii. 622.

the payment of costs, in the decree complained of, is to be considered as relief granted by the Court: as in a case where the Court below (the bill specifically praying as relief that the costs might be paid out of the residue) ordered such costs out of the general personal estate, instead of out of the funds in question, on appeal, so much of the decree as related to the costs was reversed.[a]

If a defendant, who has neglected to appear at the hearing of the cause, and who has allowed the decree nisi (which is taken against him) to be made absolute, is desirous of being heard by the Court, it is not the practice for him to apply by motion to discharge the order for making the decree absolute, and for liberty to show cause against the decree nisi, but to present a petition for liberty to rehear the cause. In Attorney General v. Brooke, 18 Ves. 319, one of two defendants having made default at the hearing, and a decree nisi having been made absolute against him, and the Master by his draft report having stated 1800l. to be due from such defendant, the defendant applied by motion to discharge the order making the decree absolute, and for liberty to show cause against the decree nisi. The Lord Chancellor directed him to apply by petition to have the cause reheard. A petition was presented accordingly, and liberty was granted to rehear the cause, upon payment of the costs of the application, and the previous costs in the Master's office subsequent to decree, and the consideration of further costs was reserved. appears, the proceedings under the decree were not to be disturbed.

It

A defendant is not entitled to appeal against a decree [ *23 ] *nisi, made absolute by default; for which reason the evidence is never entered as read in the decree absolute. (Stubbs v. 10 Ves. 30.) In Vowles v. Young, 9 Ves. 172, after a decree nisi, taken in consequence of the defendant's default in not appearing at the hearing, had been made absolute, the Court granted a rehearing upon terms. And in Cunyngham v. Cunyngham,

[a] Eyre v. Marsden, 4 Myl. & Cr. 231; S. C. 3 Lond. Jurist, 450; Taylor v. Southgate, 4 Myl. & Cr. 203; S. C. 3 Lond. Jurist, 214; per Lord Cottenham, (July 3, 1839,) Angell v. Davis, Lond. Jurist, 838; S. C. 4 Myl. & Cr. 360; Malone v. Clarke, 1 Moll. 15, (12 Eng. Ch. Rep. 10.) So, an appeal lies from an order charging the appellant with costs, if such costs are given contrary to statute, or to a standing rule of the Court, and do not rest in discretion merely. And, in like manner, where a party is entitled to costs, as a matter of strict right, if the Court refuse costs, an appeal will lie. Buloid v. Miller, 4 Paige, 473; Winslow v. Collins, 3 Paige, 88.

1 Amb. 89, a decree nisi made absolute, in consequence of defendant's default in not appearing, was two years afterwards ordered to be reheard upon terms.[a]

If the bill has been taken pro confesso under the statute, for want of the appearance of the defendant, he or his heir, or representative, may rehear the same, provided he or they apply within the time limited by the act. (See Vol. I. p. 158.) For this purpose he must appear in court, and petition to be heard with respect to the matter of such decree, and pay down, or give security for payment, of such costs as the Court shall think reasonable in that behalf; and upon so doing, the person so petitioning, or his representative, or any person claiming under him, by virtue of any act done before the commencement of the suit, may be admitted to answer the bill exhibited, and issue may be joined, and witnesses on both sides examined; and such other proceedings, decree, and execution may be had thereon, as there might have been in case the same party had originally appeared, and the proceedings had been newly begun, or as if no former decree or proceedings had been in the same cause. (1 Will. 4, cap. 36, s. 7.)

If a bill has been taken pro confesso against a defendant who has appeared but not answered, I have not found any case pointing out the manner in which he can appeal or obtain a rehearing. The decree pro confesso being pronounced by the Court upon the statement in the bill, and the plaintiff not being allowed to take such a decree as he *can abide by, there appears no reason why such [ *24 ] defendant should not be allowed, after he has cleared his contempt, to controvert the decree. In Ogilvie v. Herne, 13 Ves. 563, Sir W. Grant said, a decree obtained pro confesso cannot be impeached collaterally; but must, like every other decree, be impeached directly upon a bill of review, or a bill to set aside for fraud. The justice of the case, however, would seldom be obtained if the defendant could only appeal or rehear the decree, upon the assump

[a] Where, by the default of the defendant, a decree nisi has been made absolute against him, it is in the discretion of the Court, whether, and upon what terms and conditions, he shall be permitted to rehear the cause. The proper course of proceeding, in that case, is for the defendant to present a petition for leave to rehear, in order that the Court may have an opportunity of becoming acquainted with all the circumstances necessary to enable it to exercise its discretion. Per Lord Cottenham, (Aug. 11, 1841,) Jones v. Creswicke, 5 Lond. Jurist, 763.

tion that the facts in the bill were correctly stated; and the usual application on behalf of a defendant so circumstanced, (although I cannot find any case where it has been granted,) has been for liberty to put in an answer. In Heyn v. Heyn," 1 Jac. 49, the Court refused the defendant liberty to put in an answer after the bill had been taken pro confesso; but on a subsequent occasion discharged the sequestration, on payment of the costs of the contempt and of the suit up to the time of the application, and gave the defendant liberty to attend before the Master.[a]

After an order has been obtained to take the bill pro confesso, but before the bill has been taken pro confesso, applications have been made by defendants for liberty to answer: In Herne v. Ogilvie, 11 Ves. 77, upon a motion. to discharge an order pro confesso, upon payment of costs, the Court required to see the answer proposed to be put in, which being declined, the bill was taken pro confesso; and in Williams v. Thompson, 2 Bro. C. C. 280, Lord Thurlow refused to discharge the order pro confesso. In the last case the defendant filed his answer after the order to take the bill pro confesso, which the plaintiff refused to accept.

In a MS. case of Beddall v. Page, the subject under[ *25] went *considerable investigation, and the result was a recommendation that the defendant should apply by a notice of motion for liberty to file an answer, upon payment of the costs of his contempt; that such answer should be prepared beforehand, so that it might be seen to be sufficient by the Court; under this advice, the application was made; but the point was never settled, the affair being compromised.

The opinion that the Court would give a defendant so circumstanced an opportunity of being heard, is strengthened by what was said by Lord Thurlow, in Williams v. Thompson, 2 Bro. C. C. 280, viz. that whenever an order is made to take a bill pro confesso, if the defendant comes in upon any reasonable ground of indulgence, and pays

[4] See the last note, and the reasoning of Lord Lyndhurst, in the case there referred to, which strongly sustains the doctrine of the text.

Eng. Chan. Reps. iv. 25,