1 Johns. Ch. 325 | New York Court of Chancery | 1814
The objections to the motion appear to be. well taken.
The decree is inaccurately stated in the petition, but as a true copy was annexed, the mistake was capable of correction.
(2.) As a new petition, in the name of the guardian, might hereafter be preferred, it will be convenient to the parties that I should now consider the fitness of the application upon its merits.
The 37th rule of the 7th of June, 1806, requires that the party appealing from a decree or order of this court, should deposit 100 dollars with the register or assistant register, to answer the costs, if he shall not prosecute the appeal with effect; and, in default, “ proceedings shall thereupon be had, as if such appeal had not been made.”
If this be a rule just and reasonable in itself, and one which the court had authority to make, I see no-sufficient reason for dispensing with it in this particular case. The practice of the court ought to be settled and uniform.
The object of the rule was to prevent the abuse of suing out appeals for the mere purpose of delay, without any bona fide intent of prosecuting them to effect, by subjecting the party, at all events, to the payment of the costs, which his appeal necessarily produces. The practice with us is to lodge the appeal in the register’s office, and the court above is not considered as possessed of the jurisdiction of the cause, until the petition of appeal has been presented to them, and which cannot be until they are in session. Without this
The object of the rule is not to restrain appeals, (for this court does not pretend to any such power,) but merely to
I have conversed with my predecessor, who made the rule of 1806, and he gives the view of it which 1 have stated; he says he found a similar rule existing when he came into this court, which was made by Chancellor Livingston in the early history of the court. After such a sanction and usage, it would not be becoming in me to reject the rule at once, as unfit and illegal. I ought to .be taught its inconvenience by experience, or become persuaded, upon the fullest consideration, of its illegality.
The practice of requiring deposits of money to meet costs, is common in the English chancery. A rehearing will not be granted without a deposit of 20l., (Cur. Can. 343. Wyatt’s P. R. 369.,) nor a bill of review without a deposit of 50l. ; (Gilbert’s Forum Romanum, 186. ;) and yet a rehearing and a review are remedies to which the party aggrieved has as perfect a right as he has to an appeal. The statute organizing the court of errors, and which grants the appeal, is not to be construed so strictly as to preclude all checks upon the abuse of appeals; for, to prevent the abuse is in furtherance of the due exercise of the right. The statute is as much binding upon the court above, as upon this court, and if it. renders the rule of this court illegal, it would equally prohibit any similar rule in the court above; and yet I presume it will hardly be contended that the court-above has not competent power to regulate the practice on appeals, and to require of the appellant even security for costs on filing his appeal. In the English house of lords, there is a standing rule of the 26th of January, 1710, that the appellant shall, in 8 days after the appeal is received, give security, by recognizance in 200/., to pay costs, if the decree be affirmed ; and I have no doubt that the court for the correction of errors, in this state, is competent to make a similar rule. It has always been supposed that it had author^
Upon the whole, it appears to me that the rule in question is fit and proper to prevent the abuse of appeals, by suing them out merely to gain time, and avoid costs ; and that it ought to continue until this court is better advised of its unfitness, or until the court above shall have made some other or further rule on the subject.
Motion denied.
Ante, p. 77.