Hornblower, Chief Justice.
The great object of the complainant’s bill was to set aside the sheriff’s sale and to have the premises re-sold, in the hope of a more advantageous one. This was a legitimate object, and one the complainant may attain, if his case is such as to entitle - him to it. But in order to accomplish this result, it was necessary for him to arrest the proceedings of the sheriff arid prevent him from delivering a deed to the purchaser. He therefore prayed that the chancellor would grant an injunction . restraining the sheriff from executing and delivering a deed for the premi-" ses to Mr. Scofield, the purchaser.
Upon- perusing the complainant’s bill, it seems the chancellor thought an injunction ought to issue; and accordingly he in-joined the sheriff from executing or delivering a deed to the purchaser until the further order of the court. Soon afterwards, the defendants, upon notice, moved the chancellor to dissolve the injunction, and after hearing the parties' by their counsel he made an order dissolving it. From this order, the complainant appealed to this court, and at the last term, (and, as they say, by surprise and in the absence of the respondents’ counsel,) obtained an order of this court, in the following words (pro ut.)
The- respondents now move to vacate that order, as irregu-larly and unadvisedly made. Upon this motion, I consider the [529]*529whole question open before the court, whether such an order could lawfully be made by this court. But counsel have not only argued that question, but have discussed the expediency or justice of making any such order, if the court had authority to do so. The debate on this secondary question led unavoidably, at least to some extent; to an examination of the bill, and a discussion of the merits of the case: or, in other words, to an inquiry whether the appellant, by his bill of complaint, had entitled himself in equity to a writ of injunction.
Upon this latter question T do not mean to express any opinion. It will be time enough to do so when this appeal comes to be heard upon the merits. Whether the chancellor committed an'error in dissolving the injunction is a matter not now before this court. The simple question now to be decided is, whether the order made at the last term ought to be vacated; or, which is the very same thing, whether this court have any right to make such an order as the one entered at the last term 1
That the cháncellor, after an appeal from his decision, may-make a temporary order suspending the effects or the legal consequences of such decision, until the appeal can be heard; or, in case the chancellor does not do so, that this court has power to restrain the party from proceeding to execute or act under or in pursuance of the chancellor’s decree, or to do what that decree has simply left him at liberty to do, I have no doubt.
The latter position seemed to be denied by the respondents’ counsel; and, with great ability and learning, he pointed out the distinction between an appeal from an order of the chancellor which 'authorized, ox created, or gave a right to the party to do, or to enjoy, or to have something which without such order or decree he could not have done or enjoyed; and an order .which simply left the party at liberty to act as he might have done if no bill had been filed, or no injunction had ever issued. In other words, between those oases where the party is proceeding to execute the decree, or is acting under an affirmative or specific authority given him by the decree, and those cases in which the chancellor, by his order or decree, only sets the party free from any restraint and releases him to do what he might have done before bill filed. This is, no doubt, a p^ain distinction; and for some purposes may be a useful one j anck [530]*530though,-in! the view I have taken of this case, it may not bo' necessary tb examine- the soundness of that distinction, oiy rather, the use of it, as applied to this case; yet, that I may not be misapprehended, 1 feel bound to say that the distinction, though it exists in-the mind, can have, in my opinion, no such practical influence in this case as counsel thinks it ought to Have.
The argument is, that: as tile chancellor only dissolved the injunction, the sheriff Was at liberty to act just as he might have acted before the bill was filed. It was just as if no injunction had ever been issued : that lie was not executing any decree ; he was not proceeding itvthe cause; he was not doing any thing for the doing of which'he derived his-authority fromthe chancellor.
It seems to me the inconclusiveness of this argument must appear by simply asking the question, whether, after this bill5 filed, and after the chancellor had granted the injunction, thesheriff could have delivered the deed without’the chancellor’s permission ? Certainly he could not; and then it is by the authority and permission of the court of chancery, and in virtueof the chancellor’s judicial decision, that he acts in the matter and delivers the’deed. It-is this very decree that the appellant complains"of in this court; and he comes here to get it reversed.
What is the difference between-simply dissolving the injunction and dismissing the bill upon a final hearing ?
If I file a bill claiming a tract of land, and get an injunction restraining the defendant from tearing down a house, or cutting down the timber; and while the injunction is in force, the cause comes to a hearing on the pleadings and proofs, and the chancellor decides against my title and dismisses my bill-; and thereupon the defendant renews his work of destruction, does He not do it by the authority and under the decree of the chancellor? And if I appeal-from that final decree, cannot this court interpose, and by am order in the nature of1 an injunction protect the property and restrain the defendant and all other persons acting or claiming under him from wasting and destroying the property ? Would it be any answer to say. it is the same- as,-if no bill- had ever been filed, and no injunction had [531]*531¡ever been issued against him? or that he stands in the samo situation as he did before suit brought, and is only doing what he had a right to do before any injunction was granted ? This argument would render an appeal utterly useless in every case of an injunction bill. A defendant might in every case after injunction dissolved, and even after appeal filed, destroy the ■ property and defeat the substantial rights of the .party. But the admission by counsel that the chancellor, after a decree of dissolution, upon an appeal being filed, might by order renew, in effect, the injunction, in my opinion admits the right of this court to do so.
But 1 have put my decision on other grounds, - and ’have said, thus much only-to preclude any conclusion that I have acted upon the distinction contended for by the respondents’ counsel. I go upon-the ground that the rule entered at the last term is nugatory and useless. If the sheriff has not delivered the • deed the appellant does not want the rule, but he wants one. ,in substance according.to the prayer of his bill. He wants an .order in the nature of-an injunction restraining the sheriff from delivering the deed. If the sheriff-has already delivered the -deed, that order must fall to the-ground as soon as we hear the appeal on the merits, whether we reverse or affirm the chancellor’s order. If we affirm, then we send the record back to him with our decree of affirmance, and nothing else.
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Hornblower, Chief Justice.
The great object of the complainant’s bill was to set aside the sheriff’s sale and to have the premises re-sold, in the hope of a more advantageous one. This was a legitimate object, and one the complainant may attain, if his case is such as to entitle - him to it. But in order to accomplish this result, it was necessary for him to arrest the proceedings of the sheriff arid prevent him from delivering a deed to the purchaser. He therefore prayed that the chancellor would grant an injunction . restraining the sheriff from executing and delivering a deed for the premi-" ses to Mr. Scofield, the purchaser.
Upon- perusing the complainant’s bill, it seems the chancellor thought an injunction ought to issue; and accordingly he in-joined the sheriff from executing or delivering a deed to the purchaser until the further order of the court. Soon afterwards, the defendants, upon notice, moved the chancellor to dissolve the injunction, and after hearing the parties' by their counsel he made an order dissolving it. From this order, the complainant appealed to this court, and at the last term, (and, as they say, by surprise and in the absence of the respondents’ counsel,) obtained an order of this court, in the following words (pro ut.)
The- respondents now move to vacate that order, as irregu-larly and unadvisedly made. Upon this motion, I consider the [529]*529whole question open before the court, whether such an order could lawfully be made by this court. But counsel have not only argued that question, but have discussed the expediency or justice of making any such order, if the court had authority to do so. The debate on this secondary question led unavoidably, at least to some extent; to an examination of the bill, and a discussion of the merits of the case: or, in other words, to an inquiry whether the appellant, by his bill of complaint, had entitled himself in equity to a writ of injunction.
Upon this latter question T do not mean to express any opinion. It will be time enough to do so when this appeal comes to be heard upon the merits. Whether the chancellor committed an'error in dissolving the injunction is a matter not now before this court. The simple question now to be decided is, whether the order made at the last term ought to be vacated; or, which is the very same thing, whether this court have any right to make such an order as the one entered at the last term 1
That the cháncellor, after an appeal from his decision, may-make a temporary order suspending the effects or the legal consequences of such decision, until the appeal can be heard; or, in case the chancellor does not do so, that this court has power to restrain the party from proceeding to execute or act under or in pursuance of the chancellor’s decree, or to do what that decree has simply left him at liberty to do, I have no doubt.
The latter position seemed to be denied by the respondents’ counsel; and, with great ability and learning, he pointed out the distinction between an appeal from an order of the chancellor which 'authorized, ox created, or gave a right to the party to do, or to enjoy, or to have something which without such order or decree he could not have done or enjoyed; and an order .which simply left the party at liberty to act as he might have done if no bill had been filed, or no injunction had ever issued. In other words, between those oases where the party is proceeding to execute the decree, or is acting under an affirmative or specific authority given him by the decree, and those cases in which the chancellor, by his order or decree, only sets the party free from any restraint and releases him to do what he might have done before bill filed. This is, no doubt, a p^ain distinction; and for some purposes may be a useful one j anck [530]*530though,-in! the view I have taken of this case, it may not bo' necessary tb examine- the soundness of that distinction, oiy rather, the use of it, as applied to this case; yet, that I may not be misapprehended, 1 feel bound to say that the distinction, though it exists in-the mind, can have, in my opinion, no such practical influence in this case as counsel thinks it ought to Have.
The argument is, that: as tile chancellor only dissolved the injunction, the sheriff Was at liberty to act just as he might have acted before the bill was filed. It was just as if no injunction had ever been issued : that lie was not executing any decree ; he was not proceeding itvthe cause; he was not doing any thing for the doing of which'he derived his-authority fromthe chancellor.
It seems to me the inconclusiveness of this argument must appear by simply asking the question, whether, after this bill5 filed, and after the chancellor had granted the injunction, thesheriff could have delivered the deed without’the chancellor’s permission ? Certainly he could not; and then it is by the authority and permission of the court of chancery, and in virtueof the chancellor’s judicial decision, that he acts in the matter and delivers the’deed. It-is this very decree that the appellant complains"of in this court; and he comes here to get it reversed.
What is the difference between-simply dissolving the injunction and dismissing the bill upon a final hearing ?
If I file a bill claiming a tract of land, and get an injunction restraining the defendant from tearing down a house, or cutting down the timber; and while the injunction is in force, the cause comes to a hearing on the pleadings and proofs, and the chancellor decides against my title and dismisses my bill-; and thereupon the defendant renews his work of destruction, does He not do it by the authority and under the decree of the chancellor? And if I appeal-from that final decree, cannot this court interpose, and by am order in the nature of1 an injunction protect the property and restrain the defendant and all other persons acting or claiming under him from wasting and destroying the property ? Would it be any answer to say. it is the same- as,-if no bill- had ever been filed, and no injunction had [531]*531¡ever been issued against him? or that he stands in the samo situation as he did before suit brought, and is only doing what he had a right to do before any injunction was granted ? This argument would render an appeal utterly useless in every case of an injunction bill. A defendant might in every case after injunction dissolved, and even after appeal filed, destroy the ■ property and defeat the substantial rights of the .party. But the admission by counsel that the chancellor, after a decree of dissolution, upon an appeal being filed, might by order renew, in effect, the injunction, in my opinion admits the right of this court to do so.
But 1 have put my decision on other grounds, - and ’have said, thus much only-to preclude any conclusion that I have acted upon the distinction contended for by the respondents’ counsel. I go upon-the ground that the rule entered at the last term is nugatory and useless. If the sheriff has not delivered the • deed the appellant does not want the rule, but he wants one. ,in substance according.to the prayer of his bill. He wants an .order in the nature of-an injunction restraining the sheriff from delivering the deed. If the sheriff-has already delivered the -deed, that order must fall to the-ground as soon as we hear the appeal on the merits, whether we reverse or affirm the chancellor’s order. If we affirm, then we send the record back to him with our decree of affirmance, and nothing else. If, on the, other hand, we reverse the chancellor’s decision, we must send the record back to him with our decree reversing his decision .and restoring the very same injunction which he erroneously dissolved. In -either case, then, what becomes of this order respecting the action of ejectment ?
We must not forget that we are sitting here as a court of appeal. We can do nothing but review the particular order or decree appealed from, except that, where the chancellor has, by his decree, given a party a right to a thing, we may restrain him from-using it until we can hear the appeal on the merits: or where the chancellor, by his decree, has loosened a man’s hands, we may, by a preliminary order, tie them up again, until we can hear the appeal and determine whether he ought to be let loose or not. But surely we cannot, either before or .after we hear the appeal, make a new and.original order more [532]*532.«extensive than the scope of the complainant’s bill, and more .extensive, too, than the prayer of his bill. And, more especially, we cannot make an order upon a statement of facts not contained in the bill, and upon persons not parties to the .bill.
To put .this matter in a plainer 'light, if possible, we have only to ask ourselves this question: if this cause had been heard by the chancellor on bill and answer, could we, on this bill, have made a decree that .the Morris bank, Alfred Ford and J. 11. Freeman should .not be at liberty to give .the sheriff’s deed ¡in evidence upon the trial of the ejectment in Morris county ? This will not be pretended. Then, surely, we ought not to -make a temporary order larger . than the chancellor can make .after hearing the cause.
Let us look at -this .matter «in another aspect. We are of opinion that the chancellor was wrong in dissolving the injunction which restrained.the sheriff from delivering the deed. We «therefore reverse his decree and order-that the injunction shall be reinstated and stand in full force. If, in addition to that or.der, which we remit .to the chancellor, we annex to it an order «that certain persons, by name, -who are lessors of the plaintiff in an action of ejectment, shall not .use that deed on the trial of the .cause, what sort of a record will the proceedings in chan,cerjr show when they come to be enrolled ? It will furnish a «precedent of a .new and original injunction issuing out of this .court, against new parties, and upon new facts, and this, too, .Upon a mere appeal from a chancellor’s order dissolving a former-injunction.
And yet, if we do not send-this order .to the chancellor what .good will it do ? The very moment we have heard the appeal and sent .the record .back, the plaintiffs in ejectment may proceed ; for the .chancellor .certainly cannot .restrain them, upon .this bill, from .using the deed on the trials.
In every view I can taire of this case, it seems -to me this «order is .an .extra-judicial proceeding, and ought .to -be vacated.
Whitehead, J., Carpenter, J., and judges Porter, «Spencer, Speer, Robertson and Schenck, concurred.
[533]*533Halsted, President.
This is not the occasion for expressing any opinion on the merits of the case made by the bill. The party supporting the order has had no opportunity of presenting to this court the question of the propriety of opening the biddings in this case. I shall consider the order which we are now asked to vacate as made in a case fit to be submitted to this court by appeal.
The power of this court, or of the court of chancery, to stay proceedings on an order appealed from, 'is not denied: and this power extends to orders dissolving injunctions. It was formerly held that an appeal from an order dissolving an injunction, revived the injunction. But by our present practice an appeal from an order docs not stay proceedings thereon without an order of the court of chancery, or of this court, for that purpose first had, and upon complying with such terms as the court making the order to stay proceedings may impose.
Is the case before us a case in which the power to stay pro.ceedings should be exerted ? 1 answer this question as if the deed had not been delivered. I think it is a case in which, if -the deed had not been delivered, the chancellor or this court should, in the exercise of a proper discretion, stay the delivery of the deed. And I am of opinion that the delivery of the .deed by the sheriff, within the time allowed for taking an appeal from the order dissolving the injunction, the appeal having been taken within that time, has not taken the case away from the discretionary power of this court.
The purchaser was the solicitor of the complainant in the foreclosure suit, and is a party to the bill filed to set aside that .sale. If he, immediately after the injunction was dissolved, -apprehending an appeal and an application to the chancellor or to this court to stay proceedings, went to his co-defendant, the sheriff, and obtained the deed, the chancellor or this court .could, I apprehend, give the effect to the appeal which might ;have been given to it if he had not obtained the deed. This was not denied on the argument. It was not denied that this court could lay its hand on the parties to the suit, so as to prevent them from making advantage from any act of their own jet attempting to avoid the power of this court. In a gross case [534]*534■this court would not suffer itself to be defeated of the-exercise of its discretion. This tests.the principle.
If, then, Mr. Scofield ’had thus got the deed and brought .ejectment, this court .-could restrain him. This brings us to what his'honor the chief justice seems to.consider -a bar in our ■way; which is that Scofiqld, as the chief justice seems to dhink appears, has made a deed to another, and that other has -brought the ejectment. ;It seems -to -me that before this court, ■sitting in equity, should stop» at this, they should be well satisfied that it was not a bar put up by the party himself. Is it gravely alleged here that Scofield has sold the property? It was alleged by one of ithe counsel who argued in support of the order of the last term, that the sheriff had made a deed to one Ford, a brother-in-law of Scofield, though the property was struck off- to Scofield; and on this the difficulty is started that a new-party in interest has.come in.
There is nothing before us -to .show that-a-new party in interest has come in; and if a new party in -name has been .made, it may have been done solely with the intention of embarrassing -the complainant in the apprehended motion to this .court to stay proceedings. Counsel, in this court, -will certainly •agree tlia-t parties .should stand-openly Mere on-their case as it •really is, and not seek to evade -the power of this court by a feigned movement. It must either be a feigned movement, or it must be supposed that, though the property-was struck off to Scofield, .he bid as the agent of Ford, and that the deed was ■therefore-made-to Ford.-
The Injunction was dissolved without answer, and no answer is yetdo, and we are in the dark as to this matter. But if this last supposition be true, -that though the property was struck off to Scofield, he bid for Ford, and not letting his agency be known, the sheriff struck it off to Scofield and so entered it in his memorandum of sale, and,-the complainant, under these circumstances, filed his bill against Scofield, (he could do no otherwise, for he would not know that Ford‘had any interest in the matter,) I presume it will not be .contended that such a covert operation and the making the deed -to Ford after the complainant’s bill was filed, would defeat the complainant of any order which he would be entitled to if the deed had beet? [535]*535made to Scofield; to say nothing of the question whether the sheriff, under such circumstances, could legally make a deed to Ford.
There is nothing before us to enable us to act on any other ground than that Scofield bid and bought for himself; nor any thing to show that he bap sold the property to Ford or any other person. If he bid as agent, there is nothing to show whose agent he was. whether Ford’s or the bank’s; and if he bought as agent for the bank, the sheriff, certainly, could not make the deed to Ford.
There is nothing, in my judgment, in this newly started difficulty of a now party in interest having come in.
J am of opinion that the order of this court of the last terra was right; and that it should'not be vacated.
Neviüs, J., and Randolph, J., concurred in this opinion.
Order vacated.