If the decree decides the rights to prop erty and orders it to be delivered up or sold, or adjudges a sum of money to be paid, and the party is entitled to have such decree carried into immediate execution, it is a final decree ; Forgay v. Conrad, 6 How. (U. S.) 203, 12 L. Ed. 404. In such cases it is held that the decree is final upon the merits, and the ulterior proceedings, as in the foreclosure case, constitute but a mode of executing the original decree ; Michoud v. Girod, 4 How. (U. S.) 503, 11 L. Ed. 1076.
The multiplicity of cases on this subject is too great for citation here, but the prin ciple applied is illustrated by those cited, and as to a particular case the course of decisions must be critically examined. Cas es will be found collected in notes to U. S. Rev. Stat. § 692 and to 2 Dan. Ch. Pr., 6th Am. ed. ch. xxvi. sec. 1. See JUDGMENT.
A consent decree binds only the consent ing parties ; Myllius v. Smith, 53 W. Va. 173, 44 S. E. 542; and is not binding upon the, court; Ex parte Loung June, 160 Fed. 259. It cannot be modified without consent, even at the same term ; Seiler v. Mfg. Co., 50 W. Va. 208, 40 S. E. 547 ; and the consent may be withdrawn before entry; Herold v. Craig, 59 W. Va. 353, 53 S. E. 466.
Interlocutory Decree. An adjudication or order made upon some point arising during the progress of a cause which does not de termine finally the merits of the question or questions involved. Neither the courts nor the text-writers have satisfactorily defined this term. As was well said by Baldwin, J., "The difficulty is in the subject itself; for; by various gradations, the interlocutory de cree may be made to approach the final de cree, until the line of discrimination becomes too faint to be readily perceived." Cocke's Adm'r v. Gilpin, 1 Rob. (Va.) 27. The real matter of importance is to define what is a final decree, and that being done, it may be generally stated that every other order or decree made during the progress of a cause in chancery is interlocutory. The test which is to be derived from the cases can hardly be better stated than in a late case, thus: Where something more than the ministerial execution of the decree as rendered is left to be done, the decree is interlocutory, and not final, even though it settles the equities of the bill; Lodge v. Twell, 135 U. S. 232, 10• Sup. Ct. 745, 34 L. Ed. 153.
As every decree inter partes is either final or interlocutory, all that has been said upon the former head, with the citations, must also be read in connection with this.
Decree Pro Confesso. An order or decree of a court of chancery that the allegations of the bill be taken as confessed, as against a defendant in default, and permitting the plaintiff to go on to a hearing em parte.
"A decree pro confesso is one entered when the defendant has made default by not ap pearing in the time prescribed by the rules of court. A decree nisi is drawn by the plaintiff's counsel, And is entered by the court as it is drawn. A decree, when the bill is taken pro confesso, is pronounced by the court after hearing the pleadings and considering the plaintiff's equity ;" Freem.
Judg. § 11.
Such a decree is also entered when the defendant, having appeared, has not answer ed. The effect of such a decree is that the facts set forth in the bill are taken as true, and a decree made thereon according to the equity of the case. It was formerly the prac tice to put the plaintiff to his proof of the substance of the bill ; Rose v. Woodruff, 4 Johns. Ch. (N. Y.) 547 ; 1 Dan. Ch. Pr., 5th Am. ed. 517, n.; but the practice of taking the bill pro confesso is now generally estab lished; id. 518; and the subject is, in most courts of chancery, regulated by rule of court.
In such decree, in admiralty as well as in equity, the amount of damages must be as certained from the evidence and not from the allegations of the libel or bill ; Cape Fear Towing & Transp. Co. v. Pearsall, 90 Fed. 435, 33 C. C. A. 161.
The usual modern practice is substantially that provided in Equity Rules 16, 17, of the United States courts (33 Sup. Ct. xxiii). Up on motion, it appearing from the record that the facts warrant it, an order is entered that the bill be taken pro eonfesso, and the cause proceeds ow parte, and the court may pro ceed to a final decree after thirty days from the entry of the order.
Such a decree cannot be entered when the bill contains a great lack of precision; Mar shall v. Tenant, 2 J. J. Marsh. (Ky.) 155, 19 Am. Dec. 126; but only when the allegations of the bill are specific, and the defendant has been properly served; Harmon v. Camp bell, 30 Ill. 25; Boston v. Nichols, 47 Ill. 353; Colerick v. Hooper, 3 Ind. 316, 56 Am. Dec. 505; Russell v. Lathrop, 122 Mass. 302.
When only one defendant answers, but he disproves the whole case made by the bill, a decree pro Confesso cannot be entered against those who fail to answer; Ashby v. Bell's Adm'r, 80 Va. 811.
A decree pro confesso cannot be safely en tered against an infant ; 30 Beay. 148; Bank of U. S. v. Ritchie, 8 Pet. (U. S.) 128, 8 L. Ed. 890; Daily's Adm'r v. Reid, 74 Ala. 415; Quigley v. Roberts, 44 III. 503; Tucker v. Bean, 65 Me. 352; Wells v. Smith, 44 Miss. 296 ; Mills v. Dennis, 3 Johns. Ch. (N. Y.) 367; though this is sometimes done on con sent of his solicitor ; Walsh v. Walsh, 116 Mass. 377, 17 Am. Rep. 162.
Equity Rule 8 (S. C. of U. S.; 33 Sup. Ct. xxi) provides : "If a mandatory order, in junction, or decree for specific performance of any act or contract be not complied with, the court or a judge, besides, or instead of, proceedings against the disobedient party for a contempt or by sequestration, may by order direct that the act required to be done, be done, so far as practicable, by some other person appointed by the court or judge, at the cost of the disobedient party, and the act, when so done, shall have like effect as if done by him." See WRIT OF ASSISTANCE.
In Legislation. In some countries,, as in France, some acts of the legislature or of the sovereign, which have the force of law are called decrees: as, the Berlin and Milan de crees.