#### Richard *Colvin*vs. Elisha *Warford, et al.*

A motion to rescind and reform a decree of this court, and for a rehearing' of the cause, though made at the term in which the decree passed, will be *274dismissed without consideration, unless accompanied with a statement of reasons therefor, or of alleged errors in the decree.

It is too late to asir for a writ of diminution after the cause has been argued and decided by this court.

A petition was filed by the complainants for a commission to take testimony» to be heard on hearing of the motion to dissolve an injunction. Subsequently, by agreement of both parties, a commission was issued and testimony taken, which, however, was not attempted to be used or relied on, by the complainants, on the hearing of this motion. Held:

That this action of the complainants was a *waiver*of their petition for a commission.

Appeal from the Circuit Court for Baltimore City.

After this case was decided, as reported in 17 *Md. Rep.,*433, a motion was made, by the appellees, during the same term, to rescind and reform the decree, and for a rehearing of the cause. No reasons were filed in support of this motion, and the appellant, subsequently, on this ground, moved to dismiss the motion. Certain papers were then filed by the appellees, in support of their motion, the purport and effect of which are stated in the opinion of this court.

The motion was argued before Bartol, Goldsborough and Cochran, L, by

*G. L. Dulany*for, and by *F. W. Bruñe*and *Reverdy Johnson*against, the motion.

Bartol, L,

delivered the opinion of this court.

The motion filed in this cause on the 30th day of November 1861, “to rescind and reform the decree,” passed therein, “and for a rehearing thereof,” although filed during the term at which the decree was passed, yet not being accompanied with any statement of reasons therefor, or of alleged errors in the decree, would properly be dismissed without further consideration, according to the counter-motion and suggestion of .the appellant, filed on the 20th day of January 1862. But certain papers have since been filed in support of the motion, purporting to be transcripts of certain proceedings had in the same cause, in the court from which the appeal came; which, it has been urged, on behalf of the appellees, furnish sufficient ground for rescinding the decree and ordering a rehearing.

*275(Decided April 4th, 1862.)

We have carefully examined these transcripts, and are of opinion that they furnish no sufficient reason for disturbing the decree heretofore passed by this court. It appears from them that, on the 10th day of July 1860, before the order of the Circuit court was passed from which the appeal was taken, the appellees, who were the complainants below, filed a petition praying the Circuit court to issue a commission to take testimony in support of the allegations of the bill which had been denied by the answer; that the Circuit court had refused to grant the petition, but failed to pass any order to that effect;— and therefore, upon the appeal, the action of the Circuit court upon the said petition was not brought before this court for review, as it ought to have been; and the object of the present motion is to cause that alleged defect in the record to be supplied. Considered in this light, the motion would be too late, as it would be simply asking for a writ of diminution after the cause has been argued and decided here. But it is manifest that there never existed any ground for diminution. The action of the appellees in the Circuit court, was a waiver of their petition for a commission. On the 11th day of July 1860, an agreement was entered into, between the counsel for the respective parties, that a commission to fake testimony should be issued, under which a commission was issued and testimony taken, subject to exception, which, how.ever, was not used or relied upon, nor attempted to be used by the appellees on the hearing of the motion to dissolve in the Circuit court;—nor does it appear from any thing now shown, that the testimony so taken was material or sufficient to overcome the responsive allegations of the answers, by which the equities of the complainants’ bill had been sworn away. We have noticed thus, at length, the grounds alleged in support of this motion, out of respect for the learned counsel for the appellees, who has pressed it upon us with great earnestness. But we have been unable to perceive any equitable ground for interfering with the decree heretofore passed.

The motion will be dismissed with costs.

*Motion dismissed.*