Thompson v. M'Kim

delivered the opinion of the court.' The first question which presents itself for consideration, is whether the order of the chancellor, of the twelfth of February 1825, is of such a character as to form a fit subject of appeal to this court? That an appeal will not properly lie from every order of the court of chancery, suck as mere practical orders made in the progress of a cause, or orders preparative of a cause for final hearing, and which do not affect the rights of ¿he litigating parties, is most certain, and appeals of that description will never receive the countenance of this court. If it were otherwise, it would be found difficult, if not impracticable, ever to bring a much controverted suit to issue, at every step in the progress of which it may be necessary to make an order of some kind or other. There is, however, much difficulty in drawing a precise line between such orders as furnish sufficient grounds of appeal, and such as do not, so as effectually to guard against the mischief of occasional *328hardship and injustice ori the one side; and vexatious de^ lays on the other; Nó fixed and definite rule can well be established; but every case must, in some measure, depend upon its owii peciiliar circumstances; íh Snowden’s Ex’rs. vs. Dorsey, decided in this court at the June term i 823, the order .appealed frorii settled nothing in dispute between the parties, it decided no question of right between them, but left the matter iii controversy open for future adjudication; and, in the words of the chancellor, was only preparatory to a final decreé, the decision therefore was made with á view to the particular features of thát oi'der; whifch boré rio impress of - the chancellor’s judicial opinion upon the merits of thé cáse, consequently the party was in no way aggrieved, and there was nothing for the- authority of an appellate court to act upon.

But where there is a decretal order passed upon the issue in á cause; in relation to the subject matter in controversy; which decides rind settles the question of right between the parties,- tliéte an appeal will properly lie.

Arid whether an appeal will lie in any given case, is perhaps a question proper to be decided by this court only, being a question relating to its-jurisdiction touching the rights of .the citizen, which can be controled by no other court.

, The main question presented by the bill and answer in this cause; is whether the, money in controversy between the parties was deposited with Hugh Thompson by Marcus Hey land, for the use and benefit of the holders of certain bills of exchange which had been, drawn by HeyJand; or was paid to, átíd received by Thompson for his own use, in discharge of a debt due to him from the house of William and John Bell & Co. On that question the parties are directly at issue, the bill expressly charging that the money was so deposited for the use and benefit of the holders of the bills of exchange, and the answer of Thompson positively denying it, and avering that it was paid to him for his own use, and on account of a debt due to him from William and John Bell & Co. The solution of which question depends upon the construction of an agreement entered into on the 8th January 1811, between Thompson and Heytand, and filed as an exhibit in the cause.

It is obvious, therefore, that a decision involving, the *329construction of that agreement, is a decision of the whole matter in controversy, so far at least as Thompson is "concerned.

The chancellor has given a construction to that agreement, and in doing so has expressly decided-, “that Thompson has no right or title whatever to the money” in controversy; and on that decision, the order of the 12th of February 1825, to bring the money into court, is founded; in which order also the chancellor says explicitly, that Thomp« son received the money from lleyland, for the use of Heylandds creditors, the holders of the bills of exchange. The order then Was passed upon the issue in the cause relativé to the subject matter in dispute, and involves a decision of the question of right between the parties. It is of a chai'acter to draw after it the coercive process of the court of chancery, and as distinctly decides the matter in controversy, so far as respects Thompson, as if it was a final decree, and if wrong, is as much calculated to aggrieve the party, and therefore as properly the subject of an appeal

The question next to be considered is, whether an appeal from that decretal order of the chancellor has been regularly taken-,, and properly brought before this? court?

The act of 1713, ch. 4, for regulating writs of error, and granting appeals from and ,to the courts of common law, &c. directs, (sec. 4, 5,) as the “method and rule of prosecuting appeals and writs of error,” that the party appealing, or suing out a writ of error, shall procure a transcript of the full proceedings of. the court from which the appeal shall be made, or against whose judgment the writ of error shall bo brought, under the hand of the clerk of the said court, and seal thereof, and shall cause the same to be transmitted to the court before whom such appeal or writ of error is or ought to be heard, tried and determined; and that all appeals so made shall be admitted and allowed by the superior courts to whom such appeals shall be so made in nature of a writ of error; and that every clerk of a court shall, at the time of the sitting of any court to which he belongs, and when any appeal shall be demanded, enter a memorandum of such demand, as well in his court’s proceedings, as in the fair records of She proceedings of such court, under a penalty prescribed-*330This act, it will be percéived; has no. relátión tó appeals from chancery; but by the third section of the act of 1729; ch. 3, appeals from the court of chancery ' to the court of appeals, are directed to be prosecuted in the same-manner as appeals from the courts of common law are. That manner, it is seen, is to démarid an appeal, to procure a transcript of the proceedings tinder séal, and cause it to be transmitted to the appellate court; tó be there admitted and allowed; of which demand, it is the duty ot the clerk to inter a memorandum as well in his court’s proceedings, as in the fair records of thé proceedings of such court. All which has been dime irt this case; the. appeal Was 'demand-id in the ordinary and usual mode, by way of motion to the:: Chancellor to grant an appeal, which he refused. -

A writ of error is mandatory; and does not leave it in the discretion of the subordinate ti iburial to refuse or assent to the cáiisé being carried up. By the laws of this state, appeals aré(placed upon the samé footing with writs of error, aud the sahife effect and operation given to them, with directions to thé appellate court to admit and allow them. It Was not, therefore, necessary that the chancellor should grant the appeal demanded in this case; to enable the party to bring it up; he was entitled to it as-a.matter of right; which could not be withheld, arid had nothing to do, but to pursúe the mode of prosecuting it, which is directed by the' acts of 1713, ch. 4, s. 4, 5, arid 1729, ch. 3, s. 3. This appears to have been done, arid he is, we think, rectus in curia.

' In England it has been thought right in principle that’ appeals should lie from chancery to a tribunal of ulterior jurisdiction, the House of Peers, without consulting the will of the chancellor on the subject. In this state the same principle is recognized, and this court, the court of appeals! is constituted the appellate tribunal; thé difference resting only in the constitution of the respective appellate courts, and in the particular manner of carrying up or prosecuting appeals; the mode there being by petition, to the court of last resort, and here, by demanding an ap_ peal according to the directions of the acts of assembly? but neither there or here, is it necessary that the appeal should be allowed by the chancellor, nor is any power vested in him to Withhold it; it lies ex debito justicies, and is not granted by the chancellor ex gratia. Indeed, if not *331distinctly admitted, it was scarcely denied by the counsel who closed the argument on the part of the complainants in the bill, that the appeal is properly before us. But it is, contended diat this court, constituted as it is,- a mere appellate tribunal, without any original jurisdiction,has no authority to interpose, by order, or. otherwise, to suspend further proceedings in chancery, pending the appeal, on the matter from whicli the appeal is made.

It is difficult in this state to ascertain what has been the practice at different periods of onr juridical history. Before the year 1729, the ultimate appeal was at one time, to the King in Councilj and by an act of- the legislature of the then province, passed in the year 1721-,appeals were given to the governor and council, but no mode of prosecuting or carrying them up was provided, and probably the. mode of carrying up appeals in England was formerly pursued here.

But ba that as it may, (and as far as concerns this case it is unnecessary to inquire,) the manner of prosecuting appeals does not now depend upon mere practice, but is expressly regulated by the positive provisions of the acts of J.713, ch. 4, s. 4, 5, and 1729, ch. 3, s. 3. The second section of the act of 1713, ch. 4, provides, that an execution upon a judgment obtained in a court of common law, shall not be siayed or delayed, or any supersedeas granted upon any appeal or writ of error from any such court, unless at the time of making the appeal, or suing out the, writ of error, a bond shall be given with sufficient sureties, such as the justices of the court by. whom, the judgment is given, or the keeper of the seal, to wiiorn application shall be made for such writ of error, shall approve, in, double the amount of the sum recovered, &c. That section is confined exclusively to judgments obtained-in courts of common law, and is not extended by the act of' 1729 to decrees in chancery. There is, however, a practice of great antiquity grown, up in chancery, to file a bond, at the time of taking an appeal from a decree of that court, on which all proceedings are siayed pending the appeal.. This practice, is supposed to owe its origin to the act of 1713, and to have been adopted in chancery by way of analogy to the provision of the second section of that act, in relation to the bonds required to be given in cases of appeal from judgments rendered in courts of common law* *332which probably was the case; hut as no appeal'or writ of error will lie, except on a final judgment in a court of common law,, that analogy can only hold in cases of appeal from final decrees in chancery; and there being nothing in the, act of assembly prohibiting a stay of execution, on appeals, from chancery, without bond, ,thq question is, presented, \vhether.if in such, a case the appeal itself does, not operate as a supersedeas, the power to suspend proceedings in chancery, pending the appeal, any where exists^ and if it does in what tribunal it abides?

Formerly in England' an appeal to the House of Lords, had per se. the effect to stay proceedings in chancery, pending the appeal. That, rule has since been changed, and pow the general rule there is, that an appeal does not stay proceedings, or execution, which can only be effected by order of the. chancellor, on, application made , for that purpose, or by a special order of the House of Lords, which, applications are. made, indiscriminately to the superior or. inferior tribunal^ though most regularly to the former; and; the power, of the. House of Lords to cause a suspension^ by special bi:def, of proceedings in the court of chancery, pending- the appeal, is no where questioned, but is conceded as a necessary incident to its appéllate powers.

In the state of Netp York, the old rule in England- has, been adopted, and there the. appeal does in the first instance. stay proceedings on. the matter or point appealed from, and the party wishing to proceed must, before he can. do so, apply to the chancellor for. leave, (tinless the court of errors should at the, time be in actual session, and in possession of the cause,) which is. granted or not according to, the circumstances of the particular case.

The constitution and principles of the court of chancery in this state, as in. New York, originally emanated from the. court of chancery, in England, from which source we derive our principal stock of information in chancery jurisprudence; and. the general rules governing the court of-chancery there, so far as they are. applicable, have been, 'adopted here, and are. constantly practiced upon.. In Huguenin vs. Baseley, in 15 Vesey, 182, it is said by Lord Eldon, (in reference to the question whether an appeal to the House of Lords stayed proceedings pending the appeal,) to be yery difficult to state positively, what the law was before the year 1807. But by a general: order of the. House of Lords made in that year, in its appellate judicial, *333and not legislative character, and adopted in conformity to the practice in chancery for a very long course of years, the rale is now set tied, that an appeal has not the effect to stay proceedings; and in the same case the Lord Chancellor observed, it was “much more expedient that the application for an order to stay proceedings should be made to the House of Lords than, to the court below.”

The understanding in this state, (so far as the practice of filing a bond at the time of appealing affords any evidence of it.) is, that an appeal does not of itself stay execution of the decree; which understanding may have originally been borrowed from the practice at the time, of the court of chancery in England, and we have now no disposition to shake it, and can perceive no sufficient reason why it should not be recognized and adopted as a fixed and settled rule for. the government of the court of chancery here. Rut it is manifestly, necessary, to the ends of justice, that there should be a power in special cases to suspend^ proceedings on the matter, appealed from; therefore in, adopting the rule, that an appeal does not stay proceedings, we adopt it with its necessary incidents, which are, that pending the appeal, proceedings may be stayed either by order of the chancellor, on application made to him for that purpose, or by a special order of this court, on such terms as the peculiar circumstances of each particular case may be found to require.

The power of the House of Lords to, slay or suspend proceedings by special order pending an appeal, is not ai^ arbitrarily assumed power, but is incidental to that body, not in its. legislative, but when sitting in its judicial character only, and it is necessarily incident to this court,' to preserve the usefulness of its appellate jurisdiction. If it were otherwise, cases might arise in which the appeal would be but as a shadow, pending which the substance might be lost. It cannot be necessary to go into a specification of cases of that description, they must present them* selves to every mind.

In this case, after the appeal was made, an application •was preferred to the chancellor, to suspend proceedings on. the order appealed from, which was refused, perhaps without an examination by the chancellor into the extent of his powers in relation to that subject.

That he had the power to suspend further proceedings 9a the nutter from which the appeal w^s made, on proper *334and reasonable terms, we have not the smallest doubt, an# as little, that the same power also rest's with this court, having the. right of revision, we have all the. powers necessary to the beneficial exercise of that right.

Is this then a fit case for the interposition of this court,§ The order of the chancellor is, that the appellant shall bring into court an amount exceeding 870,000, the use or interest of which sum, amounting to more than 84000 a year, would, by an' enforcement of the. order pending the appeal, be wholly lost to him,, without any benefit whatsoever to the complainants; whereas the injury to the appellant would be irreparable, since in no event of the cause could the lost interest be restored to him, or, any compensation for it be made. It is emphatically in, such a state of things, that the power of this court, to cause by special order a suspension of proceedings on the matter appealed from, should be exercised, and not lightly, or, in, every cause; but where the court sees that if the decree or orden appealed from should turn out to be wrong,- the enforcement of it, pending the appeal, would produce an irreparable.inju,ry to the party appealing, it ought and will interpose to prevent such injury, or all the purposes of its* institution, as an appellate court of chancery, will not b,e answered, But it will only interpose in such mariner,, and on such terms, as will not be prejudicial to the adverse party. Under the special circumstances, therefore, of this case, we think that the application by the appellant, for a special order to suspend proceedings in the court of chancery, on the order of the. twelfth of February 1825, pending the appeal in this court from that order, ought to be gratified, on, a bond being filed in that court by. the appellant to the complainants, with condition suited to the nature of the case, and sufficient sureties to' be approved by the chancellor,

The court, therefore, pass the following orders.

Western Shore, State of Maryland,- set.

By the Court of Appeals, June term, 1825.

Whereas it appears by the record of the; proceedings of this court, that in a certain suit depending in the court of chancery for this state, in which John M'Kim, &c. are complainants, and Hugh Thompson and John Bell are defendants, an order was passed by the chancellor, bearing *335Csde the 12th day of February 1825, which is in the following words, viz. [ Here follows the chancellor's order J] And whereas the .said Hugh Thompson hath appealed front the said order of the chancellor to this court, which appeal is aiow here pending. It is thereupon, this Itth day of July, in the year 1825, upon the petition of the said Hugh Thompson, the above named appellant, ordered by the court of appeals for the western shore, that all further proceeding:; in and upon the said order, and all process to enforce the same, be stayed and suspended in the court of chancery ulit.il the said appeal he heard and determined by this court; Provided the said Hugh Thompson shall file iii the court of chancery a bond to .the complainants in the .court of chancery, in the penalty of one hundred and fifty thousand dollars current money, executed by the said Hugh Thompson, with sufficient sureties to be approved by the chancellor, conditioned, that if the said Hugh Thompson shall not prosecute with effect the Appeal by him made and iiow depending in the court of appeals for the western shore, from an order passed by the court of chancery, on the twelftk day of February eighteen hundred and twenty -five,in a cause in that court depending, in which John Mi Kim, junior, &c. are complainants, and Hugh Thompson and John Bell are defendants, ordering the said Hugh Thompson to bring into the said court, on or before the fourteenth day of April then next, the sum of thirty-nine thousand live hundred said seven dollars and eighty-five cents, being the value of «fight thousand eight hundred and eighty-nine pounds five shillings and four pence, sterling, money of England, together with legal interest thereon from the first day of January in the year eighteen hundred and twelve; and shall not perform and fulfil the said order in case the same shall be affirmed by the court of appeals; and also shall not perform and comply with any order or decree, which shall be made on the sa.id appeal by the court of appeals, and also shall not satisfy and pay to the said complainants all costs and damages that shall.be awarded by the court of appeals, then the said bond to he and remain in full force and virtue, otherwise of no effect. And it is further ordered by this court, that a copy of this order, attested by the clerk of this court, and certified under the seal thereof, be forthwith transmitted by the clerk to the court of chancery.

MOTION AND OB.DEB. CHANTED.