3 Johns. Ch. 160 | New York Court of Chancery | 1817
The first point has been repeatedly decided in favour of the power of this court; and for this purpose, I refer to the case of Eden v. Winter, decided in 1814, (1 Johns. Ch. Rep. 77.) to Bradwell v. Weeks,
The court exercises it discretion, so far only as to prevent impending injury, or actual abuse, by the intermediate delay. It permits no proceeding after an appeal, except in special cases founded on the reason and necessity of the thing. Thus, in the case of Green v. Winter, already-referred to, (in which the learned counsel who now contends that I have no such power, then strenuously contended that I had,) I refused to permit the master to proceed to take an account under a decretal order appealed from, because I saw no necessity for taking such a step. On the other hand, in the case of Barrow v. Rhinelander,
The second point is equally untenable, for upon this application, the decree must be assumed to be correct. If there has been a mistake in the sum taken from the master’s report, (which cannot be conceded,) the proper remedy was by application for a rehearing. The merits of the decree cannot now' be opened or discussed.
The third ground is the only one to b.e considered.
There is no immediate danger of loss from delay, but if is apprehended that in the course of a year or more, there may and will be an occurrence of circumstances by which the sum decreed, or the greater part of it, will be lost. If 1 am to be governed by those circumstances, they ought to have been fully stated; but without them, I can readily believe that a large debt, left for a long time in adverse hands, without any real or personal security, may become endangered by the' ordinary vicissitudes of business and the casualties of time. I presume that there are not many eases of a decree for the payment of money, in which the bringing of the money into court, or security for the payment of it, has not been made a condition of granting an application to stay proceedings pending an appeal.
Decrees are- often complex and multifarious in- their provisions. In a great variety of them, no such payment or security could or would be required, and the proceddings would stay,, as of course. This may be a reason why the statute has not' made any general- provision for security on filing appeals from final decrees, as it has on error from judgments at law.
There is much difficulty in undertaking to inquire into the pecuniary circumstances of a party, in order to determine how far danger may exist.- There is no certain rule for the discretion. In the case of a bill of review, it was provided by a rule, as early as Lord Bacon’s time, that if the - decree was for the payment of money, the money must be
But the necessity of immediate security is certainly not pressing, and the plaintiffs have conducted themselves with a remissness in the prosecution of the suit that showed their confidence in the pecuniary stability of the defendant. I shall, therefore, give to the defendant all the indulgence, as to time, that his council has requested; and I am the more readily induced to do this, as he may wish to have an opportunity to take the opinion of the court of appeals on this very point; and I shall, intentionally, afford him that facility, by extending the time to the 1st of March.
It is, accordingly, ordered, that the solicitor of the plaintiffs be at liberty, at any time, notwithstanding the appeal, to have the costs of the suit taxed aginst the defendant. And it is further ordered, that the plaintiffs be at liberty to issue execution for the 81,838 dollars, 97 cents, with interest thereon, from the first day'of July, 1816, and costs to be taxed against the defendant, according to the course and practice of the court, unless the said defendant shall, on or before the 1st day of March next, at his election, either bring the said principal, interest, and costs into court, and deposit the same with the register, or assistant register, to abide the event of the said appeal, and the further order of this court, or give real or personal
Order accordingly,
N. B. There was an appeal from this order, to the Court of Errors ; and after the Chancellor had assigned his reasons to the Court of Errors, for the order, the point was argued in connection with the merits of the cause upon the other appeal, but the Court of Errors gave no opinion on the appeal from this order. Pending the argument on the other appeal, the counsel for the appellant applied to the Chancellor to enlarge the time for giving the security under this order, and he accordingly enlarged it to the 1st of May; and, in the mean time, the decree on the merits was reversed. The power of the court as declared in the above case, therefore, remains unshaken; and it is understood, that the Judges of the Supreme Court, as far as they had considered the question, concurred in opinion With the Chancellor on this point.
Ante p. 66.
Ante p. 120.
Ante p, 12c.