| New York Court of Chancery | Nov 14, 1828
The Chancellor :—By the ancient practice of the English Court of Chancery, as appears from the cases cited in (Fox v. Mackreth, 2 Cox’s Cas. 158,) causes were sometimes reheard more than once, on the application of the same party. But it is now settled in that court, that a second rehearing cannot be had at the instance of the same party, after the first decree has been affirmed, except in a case of palpable mistake, or under very special circumstances. (East India Company v. Boddam, 13 Ves. 421.) But I have not been able to find any case in the English reports in which a rehearing has been refused on the ground that the cause had already been reheard, if the application came from the opposite party. In England, one rehearing appears to be a matter of course, on the usual certificate of counsel. (18 Ves. 325.) But by the practice of this court it is not a matter of course, except in the special cases provided for in the 70th rule. In all other cases, the granting or refusing a rehearing rests in the sound discretion of the court. The Chancellor may refuse to rehear a cause, where there is reason to suspect it is intended for delay; or may impose such terms upon the applicant as may be necessary to preserve the rights of the other party from injury during a protracted litigation. If a cause has been twice heard on the same point, and the Chancellor on the last hearing has reversed his former decree, it might be deemed unreasonable to ask the same Chancellor to review his last opinion. But if the decree of one Chancellor has been reversed by his successor in office, the first rehearing cannot reasonably be urged by *the party in whose favor it was granted, as an objection to a review by a third Chancellor, of these conflicting decisions of his predecessors. This is substantially such a case. Each of the circuit judges, when hearing this cause, represented the Chancellor in this court. I, therefore, think it a proper case to be reheard, and without any restriction upon the right of the complainant to carry the cause to the Court of Errors, if decision of this court should be against him on such rehearing.
It is at least doubtful whether this court now possesses the power to direct the cause to be reheard before a circuit judge. If such power existed, it would not be a judicious exercise of it in a case situated as this is, to send the cause back to either of the circuit judges whose conflicting opinions were to be reviewed.
There must be a rehearing before the Chancellor on the usual terms.