Samuel Nelson

“ Now, is it laid down in all the books that there can be no execution till enrolment, and that enrolment is necessary to make the decree a record? (1 Barb. Ch. Pr., 342, 2 Dan.; Perkins, ed. of 1846, 1220, 1221.) It will not, till enrolment, be treated by other courts as a record. The reason given is, because, till then, it is open for rehearing. Hence in rule 88 the word recorded is used, which means made a record by enrolment. ”

“ Rule 88 in equity says, 'No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the Supreme Court.' Entry alone does not cut off rehearing. The decree must be recorded, to cut off a rehearing. Recording is enrolling. Therefore, there can be a rehearing till the decree is recorded or enrolled, and there can be no execution till a decree is enrolled. ”

“ Therefore, on the 28th of August, 1857, the plaintiff was not entitled to have the decree carried immediately into execution, and the appeal in 54 was irregular.
As to arguing the cross appeal in 158 with the original appeal, whether it be 54 or 106, the record in 158 is not printed. We prefer to wait.
Plaintiff might have taken his cross appeal as early at least as Dec. 11, 1856. He waited till July, 1857. It is his own fault. We had to appeal, to stay execution. ”