case CUNYNGHAM against CUNYNGHAM see booth v creswicke Cr Ph decree nisi make  absolute two year afterward order to be reheard on term Hankwitz v OCarrel  dick vowles v young Ves attorneygeneral v brook Ves S c mere Terran v wait  dick lib Reg a foe S c dick in chancery may decree nisi the defendant not  appear and make absolute two year afterward the defendant petition to have the  cause reheard on the usual term require in case of a rehear it be this day  move by Lord chancellor direction Murray solicitorgeneral insist for the  plaintiff that if the defendant have show cause on the decree nisi he must in  the first place have pay the plaintiff his cost that by let the decree be make  absolute he have be guilty of a second delay and if he be to be allow to set  down the cause on the common term he will be in a better situation than he  will have be if he have petition to have hear the cause after the first  default in that case he have pay cost but by this mean he will avoid it rider  attorneygeneral on the other side argue that this be the common ambler er p  method in case of a rehear and no prejudice can arise to the plaintiff for on  the determination on the rehear the court may order the defendant to pay to  the plaintiff all his cost ambler Lord Hardwicke c seem to be under great  difficulty to comply with the petition and motion at all and declare his  opinion that it may be the mean of great delay and therefore he say he shall  not be inclinable to giant they but on term such as to pay the plaintiff his  cost he say a appeal from such a decree make on default will in a very few  instance prevail or be entertain in the house of lord for they can not go in  any new matter but only what be insist upon and prove at the hear in this  court and as nothing be read on the part of the defendant so nothing can be in  the house of lord indeed where a decree appear wrong on the face of it a  appeal will lie but in the case of a rehear this court be not so strict for  the deposition take on the part of the defendant may be then read although  they be not so at the time of the original hear his lordship think the best  way will be to move that the order of confirmation may be discharge and the  cause set down to be hear but he put off the motion till the next day of  motion and direct precedent to be search in the mean time and the counsel be  to think of a proper method and afterward on the that of may the motion come  on again Mr Wilbraham observe that a rehear be not a matter of course but be  discretionary in the court and be so declare by Lord Macclesfield in the case  of mill v bank wms in the court of exchequer there must be a petition in open  court and counsel hear upon it on all side this practice will be introductive  of a new dilatory which will become frequent especial in the case of a bill of  foreclosure rider attorneygeneral on the other side compare this case to the  writ of error of a judgement at law which will lie after ever so many default  and cite the case of Tarrant v wake that July motion to discharge a order for  appeal from decree at the roll the cause be set down at the roll by surprise  plaintiff be not ready and desire the hear may be adjourn and it be grant on  condition he will appear and as Mr attorney say pray no day over but Lord  chancellor say that be a mistake ambler in the report for a plaintiff never  have a day give he and therefore it shall be that he will appear and open his  bill on the day of adjournment the plaintiff do not appear and his bill be  dismiss application be make to his honour to have the cause set down again but  refuse and then a appeal to the Lord chancellor be bring and set down the  defendant move to discharge the order for the appear but the court order the  appeal to stand on the plaintiff pay the cost of the day and the cost of hear  the appeal foil v foil Trin be also cite from a manuscript of sir Bartholomew  shower decree nisi make absolute on cause not be show application be make for  a rehear without cost of the default and Lord chancellor say that at this rate  the cost of the default will never be pay and order the cause to be reheard on  payment of the cost of the default Lord Hardwicke c this case differ from a  appeal from a decree at the roll in that case though there may have be two  default yet on petition for appeal the court will not oblige the party to pay  cost a appeal in such case after default will lie to the house of lord from a  decree at the roll indeed no evidence can be read there on the part of the  defendant because none be read below but such a appeal can not be refuse  because if the decree appear wrong on the face of it as be different from the  bill the defendant may have it set right by a appeal and in that case it be  like a writ of error at law for there the court do not enter into the merit  but examine whether the proceed be right a appeal will not lie from the roll  to the house of lord until the decree be sign and enrol Barlow v Bateman bro p  c Edward Toml Manby v the duchess of Hamilton appeal from the master of the  roll be dismiss and the cause order to be hear by Lord chancellor Lord king  make a rule that no petition of appeal shall be receive but within a fortnight  Lord chancellor can sign and enrol a decree pen a rehear before he the  practice be that when a petition or rehear be sign by two counsel such credit  be give by the court to their opinion that the cause ought to be reheard as to  order it to be set down attorneygeneral v brook Ves east India company v  Boddam Ves the question be whether ambler er p the court ought to make such  order in a case of this sort on the one hand I be apprehensive of introduce a  new method of delay on the other hand be very unwilling ambler that this cause  shall not be hear upon the merit if the party be prevent show cause on the  decree nisi by misrepresentation or surprise the proper method will be to  apply by motion to discharge the order of confirmation and to have further day  to show cause see Robson v Cranwell dick but that method have not be take here  and if I do not rehear the cause the defendant have no mean of be hear upon  the merit consider on which side the great inconvenience lie if the defendant  have appear to show cause and set down the cause and the decree have be affirm  after that he may have petition for a rehear and then just the same length of  time have be spend in the cause as there be now so that this be not so great a  delay as I at first apprehend it then come to this question whether the court  shall discharge the order for rehear and put the defendant to move to  discharge the order of confirmation by that method I shall create more expense  and more delay therefore shall take a short method and not discharge the order  for rehear but let it stand on the defendant undertake to pay the cost he  ought to have pay for his default in case he have come and show cause to be  tax by the master see vowles v young Ves and also undertake to pay such cost  of the proceed subsequent to the decree as the court shall award in case the  decree on the rehear shall be vary and likewise the cost of this motion the  Registersbook say nothing of the cost of the motion and in case of default in  compliance the order for rehear to be discharge without further motion as to  the objection that be make at the bar that it may be the mean of delay  especial in case of a bill of foreclosure his lordship say the court may  before they order the cause to be reheard direct the money to be pay into  court see the judgement in this case upon the hear Ves and the fact full state  by Mr belt in his supply to Ves p and edit it appear from l r that the decree  nisi be pronounce on that April and that on the that June it be make absolute  that since that time the plaintiff have be proceed before the master and that  interrogatory have be exhibit to examine the defendant but that they have  neglect to put in their examination on the d of may the order of rehear be  make and on the that it be move to discharge that order see button v price pre  Ch macdonnel v macdonnel dow but see Rochfort v nugent bro p c vo edit see  wright v peel pre Ch hedge v Cardonnel atk Needham v smith vern Buckmaster v  Harrop Ves Dashwood v Lord Bulkeley Ves white v Fussel v b Catterall v  purchase atk walker v Symonds mere n a wood v Griffiths ib Huddleston v  Briscoe Ves see Wyatt prac Reg and case refer to in the margin but see Addison  v Hindmarsh vern in the case of goodyear v sir b lake in chancer that October  the Lord chancellor hold that upon exception to master report evidence may be  read in court which have be refuse or not read before the master and that upon  a appeal from a decree at the roll or at a rehear the party be at liberty when  the cause be open to the court to read any new evidence which have not be  produce at the first hear if it be proper in the cause serj hill ms vol p by a  general order of that April and which be republish that Feb the party appeal  or obtain a rehear be liable beyond the deposit to pay such further cost as  the court on rehear shall direct Beamess Ord Ch bro c c and see the case give  by Mr beam in the note to the above order ambler er p