Sands v. Hildreth

| Court for the Trial of Impeachments and Correction of Errors | Feb 15, 1815

The Chancellor

being called upon, according to the course •of this court, to give his reasons for the decree in the - court below, said, that as the appellants never appeared-at the hearing, to, make any defence, he had no reasons to assign, as his decree was given,, as matter of course, on. the default-of the defendants below. ';

To allow -the appeal, in this cáse, would be making this a court of original jurisdiction. The defendants, who have treated, .the court below with- disrespect, can lose nothing: by-the rejection of their appeal. The default was voluntary on their part* and it is their own fault that á decree "has been pronounced against -them. If they had any > real defence to make,, they should have appeared: at the.hearing. . , • ' ' «■

In Dean v. Abel,^* when the' defendant made default at the' hearing, and a. decree was pronounced again-st: him, from which he appealed, the house of lord's, without'going into the merits* dismissed the appeal* for it was in the. nature of an original! hearing. '

No matter, not prayed for in a bill, or insisted on at the hearing, can be made the ground - of an appeal. - If is the estab* lished rule of the house of. lords,, and;,is' 'founded in the .very tiatur-e- o£ a court of appeals,..that no point not made in the court below can be made on the appeal.^†

T. A. Emmet, and Woodworth, for the appellant,

.said,, it was unnecessary to' look for English -authorities, when our statute.. authorized the appellant to coiné to this .court; That statute: (sess. 24. ch. 10. s. 8. 1 N. R. L. 134.) declares, that “ allperson's'.aggrieved by ahy sen tence",, judgment, decree,: Or Order* of the. court of chancery* or court of prob.ates,-may appeal from {he same* or any part thereof,!’ ' to-this court. The appellant has a right to this appeal, both from the terms and the spirit of (lie statute. The terms of the act are plain and explicit; and the" spirit and intention of it are equally clear;- -The chancellor is bound to examine every case that comes before him, before he pronounces his’ -decree, The defendant: rhay repose "such "confidence in the learning and integrity of the chancellor, as to be-willing,-to trust, the -decision to Ms; conscience ;; -and he- .ought' not, in justice to the appellant, to put his conscience into- the hands of the- solicitor, for drawing up the decree.-. , - ■

It appears; from the decree, that the -cause was" considered by the chancellor. .- •.

ThbugM we'might*'..possibly, .obtain a rehearing* yet that: bannot affect pur right of appeal. . " -• -b.-'

Riggs, in reply,

said, that there was nothing imperative in .the act relative to appeals ; and this court, in the construction of it, have -considered the circumstances of the easel The right of a suitor, in England, to appeal, is as.perfect as it is in this state. If the decree was not warranted by the record; the defendants below might bring a bill of review, ahd have a rehearing, - -

Emmet.

A bill of review is not the proper "remedy for the defendants below.^*

By the Court,

unanimously, Ordered, that the- appeal be dismissed, with costs.