Opinion of the court, by
Judge Swan:
The principal question is, whether a court of chancery has jurisdiction of the case, as made by the bill. The question, in this [176]*176respect, is important, and has received the full consideration of the court.
The statute of February 18, 1824, vol. xxiv. 72, allows an appeal to the Supreme Court, of course, from any judgment or decree rendered in the common pleas, in which such court had original jurisdiction; and the party desirous of appealing shall, at the term of the court of common pleas at which the judgment or decree was rendered, enter on the records of the court notice of such his intention, and within thirty days after the rising of the court shall enter into bond to the adverse party, with one or more good and sufficient securities, to be approved of by the clerk, in double the amount of the judgment or decree rendered, etc. The appeal bond, in this case, was taken in double the amount of the judgment, exclusive of costs.
On motion of the respondent, the Supreme Court quashed the appeal upon the grounds that the bond was not executed in conformity with the provisions of the statute. The amount of the penalty was supposed to be matter of positive *law, and one of the requisites upon which the appellate jurisdiction of the court depends. To effect an appeal, the provisions of the statute, no doubt, must be substantially complied with. It can not be done without the notice is entered of record, at the term in which the judgment or decree was rendered. So the appeal must fail, if the bond should not be executed within the timo proscribed by the act, and it has been several times decided that the penalty of the bond must be in double the amount of the judgment or decree, including the hosts.
The party has his right of appeal, upon complying with the conditions annexed by the statute. His right is lost, by omitting or neglecting to perform any of the conditions, and the appellate jurisdiction of this court altogether ceases over the cause. With regard to notice and filing the bond, within thirty days after the rising of the court, the decisions have been uniform, that the omission, in either case, ousts this court of its jurisdiction. It is undoubtedly within the powers of the legislature to attach all reasonable conditions to the right of appeal, and thus place a limitation upon the appellate jurisdiction of this court. The causo is not appealed without the party performs the conditions required by statute, and when he neglects to do so, to entertain jurisdiction would be mere usurpation of power. But the objection comes too [177]*177late, to the correctness of the decision, in dismissing the appeal. The party complaining of the injury is fixed with the judgment of the court of common pleas, and the common law can afford him no remedy. This is the ease, whether the dismissal of the appeal was justified by a correct interpretation of the law or not. The injury, if any, to the complainants has originated with the clerk, who prepared the bond, or with the appellant who executed it. Uniform practice has fixed the drafting of these bonds upon the clerks. Their offices are usually furnished with blanks for the purpose.
The bill and evidence show conclusively, that the bond was, in good faith, prepared by the clerk, and in good faith executed by the principal obligor. By mere mistake, or misapprehension in-both, the costs were not doubled with the judgment, and inserted as the penalty. Doubts as to the necessity of adding the costs, in the penalty of the bond, *have existed with the bar. Even some of the judges have not been without them. This is a mistake, then, which a plain man, acting in perfect good faith, might naturally commit, upon the most careful examination of the law, and using every effort to comply with its provisions. No fiiult or negligence can be imputed to the party seeking to resist the plaintiff’s claim in the appellate court. The record shows most satisfactorily, that Oliver honestly believed he had a meritorious defense to the action. In no part of the proceedings does it appear-that he was using the court of common pleas merely to ascertain the strength of his adversary. The cause was submitted to the jury in his absence, and there are circumstances disclosed, by the evidence and exhibits, which show an effort, on the part of the present defendant, to prevent the appellant from obtaining security to the acceptance of the clerk, not very consistent with the idea that the judgment was fairly recovered and justly due. But although this may cast a shade of suspicion over the fairness of the judgment, it does not lay the foundation of chancery jurisdiction. From the nature of society, it is difficult, if not impossible, to embrace the powers of a court of chancery in a general definition. Peculiar and extraordinary cases will arise, in the complex and diversified affairs of men, which perhaps can not be classed under any of the distinct heads of chancery jurisdiction, but which must be acknowledged, nevertheless, to come within the legitimate powers of the chancellor, because complete justice can not. [178]*178otherwise be done between the parties. Of this character is the case of Ray v. Duke of Beaufort, 3 Atk. 191. In that case Dord Hardwicke makes some remarks quite applicable to the case under consideration : “It frequently happens there may be a just -cause of action, yet the real motives may be very unjust, which a court of equity will always take into consideration, though they can not, at law, pay any regard to it.”
The following cases show that courts of equity go far to prevent injustice, when no remedy exists at law. Countess of Gainsborough v. Gifford, 2. P. Wms. 425 ; Hunt v. Rousmauier’s Adm’r, 8 Wheat. 174. Further authorities are collected in a note to 3 Desaus. 325. This reference wants accuracy; but some of the cases go far to justify the remark, *“ that courts of equity will give relief in all cases, not of a criminal nature, of fraud, .surprise, or extraordinary cases, when complete justice has not ¡been done; and in many cases upon principles of general policy.”
Anciently, courts of equity exercised jurisdiction in granting mew trials in cases of manifest injustice, or when testimony had been newly discovered. The practice went out of use when courts -of law became more liberal in granting new trials. 6 Johns. 479. Chancellor Kent says, “the present case seems to prove an exception to the modern rule, and to require of this court the exercise of that ancient jurisdiction, because here is a case in which the court of law has no power to award a new trial upon the merits.” The case at bar is within the principle and reason of the one last •cited. This defective statutory bond was executed after the term, when it was neither in the pewer of the party to apply for, nor of the court to grant a new trial. It is a case within the exception -of the modern rule, and the court is therefore permitted, upon the justest principles, to resort to “its ancient jurisdiction.” This -court considers this as an extraordinary case, in which the injured party has no redress, if a court of equity has no jurisdiction. •Great injustice may follow, especially to the complainant Oliver, should the judgment of the court of common pleas conclude the parties. From the peculiar circumstances of this case, and to prevent that injustice which may otherwise take place, this court believes no sound principle is violated by entertaining jurisdiction of this cause. But it is not enough that the court has jurisdiction •of the subject matter.
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Opinion of the court, by
Judge Swan:
The principal question is, whether a court of chancery has jurisdiction of the case, as made by the bill. The question, in this [176]*176respect, is important, and has received the full consideration of the court.
The statute of February 18, 1824, vol. xxiv. 72, allows an appeal to the Supreme Court, of course, from any judgment or decree rendered in the common pleas, in which such court had original jurisdiction; and the party desirous of appealing shall, at the term of the court of common pleas at which the judgment or decree was rendered, enter on the records of the court notice of such his intention, and within thirty days after the rising of the court shall enter into bond to the adverse party, with one or more good and sufficient securities, to be approved of by the clerk, in double the amount of the judgment or decree rendered, etc. The appeal bond, in this case, was taken in double the amount of the judgment, exclusive of costs.
On motion of the respondent, the Supreme Court quashed the appeal upon the grounds that the bond was not executed in conformity with the provisions of the statute. The amount of the penalty was supposed to be matter of positive *law, and one of the requisites upon which the appellate jurisdiction of the court depends. To effect an appeal, the provisions of the statute, no doubt, must be substantially complied with. It can not be done without the notice is entered of record, at the term in which the judgment or decree was rendered. So the appeal must fail, if the bond should not be executed within the timo proscribed by the act, and it has been several times decided that the penalty of the bond must be in double the amount of the judgment or decree, including the hosts.
The party has his right of appeal, upon complying with the conditions annexed by the statute. His right is lost, by omitting or neglecting to perform any of the conditions, and the appellate jurisdiction of this court altogether ceases over the cause. With regard to notice and filing the bond, within thirty days after the rising of the court, the decisions have been uniform, that the omission, in either case, ousts this court of its jurisdiction. It is undoubtedly within the powers of the legislature to attach all reasonable conditions to the right of appeal, and thus place a limitation upon the appellate jurisdiction of this court. The causo is not appealed without the party performs the conditions required by statute, and when he neglects to do so, to entertain jurisdiction would be mere usurpation of power. But the objection comes too [177]*177late, to the correctness of the decision, in dismissing the appeal. The party complaining of the injury is fixed with the judgment of the court of common pleas, and the common law can afford him no remedy. This is the ease, whether the dismissal of the appeal was justified by a correct interpretation of the law or not. The injury, if any, to the complainants has originated with the clerk, who prepared the bond, or with the appellant who executed it. Uniform practice has fixed the drafting of these bonds upon the clerks. Their offices are usually furnished with blanks for the purpose.
The bill and evidence show conclusively, that the bond was, in good faith, prepared by the clerk, and in good faith executed by the principal obligor. By mere mistake, or misapprehension in-both, the costs were not doubled with the judgment, and inserted as the penalty. Doubts as to the necessity of adding the costs, in the penalty of the bond, *have existed with the bar. Even some of the judges have not been without them. This is a mistake, then, which a plain man, acting in perfect good faith, might naturally commit, upon the most careful examination of the law, and using every effort to comply with its provisions. No fiiult or negligence can be imputed to the party seeking to resist the plaintiff’s claim in the appellate court. The record shows most satisfactorily, that Oliver honestly believed he had a meritorious defense to the action. In no part of the proceedings does it appear-that he was using the court of common pleas merely to ascertain the strength of his adversary. The cause was submitted to the jury in his absence, and there are circumstances disclosed, by the evidence and exhibits, which show an effort, on the part of the present defendant, to prevent the appellant from obtaining security to the acceptance of the clerk, not very consistent with the idea that the judgment was fairly recovered and justly due. But although this may cast a shade of suspicion over the fairness of the judgment, it does not lay the foundation of chancery jurisdiction. From the nature of society, it is difficult, if not impossible, to embrace the powers of a court of chancery in a general definition. Peculiar and extraordinary cases will arise, in the complex and diversified affairs of men, which perhaps can not be classed under any of the distinct heads of chancery jurisdiction, but which must be acknowledged, nevertheless, to come within the legitimate powers of the chancellor, because complete justice can not. [178]*178otherwise be done between the parties. Of this character is the case of Ray v. Duke of Beaufort, 3 Atk. 191. In that case Dord Hardwicke makes some remarks quite applicable to the case under consideration : “It frequently happens there may be a just -cause of action, yet the real motives may be very unjust, which a court of equity will always take into consideration, though they can not, at law, pay any regard to it.”
The following cases show that courts of equity go far to prevent injustice, when no remedy exists at law. Countess of Gainsborough v. Gifford, 2. P. Wms. 425 ; Hunt v. Rousmauier’s Adm’r, 8 Wheat. 174. Further authorities are collected in a note to 3 Desaus. 325. This reference wants accuracy; but some of the cases go far to justify the remark, *“ that courts of equity will give relief in all cases, not of a criminal nature, of fraud, .surprise, or extraordinary cases, when complete justice has not ¡been done; and in many cases upon principles of general policy.”
Anciently, courts of equity exercised jurisdiction in granting mew trials in cases of manifest injustice, or when testimony had been newly discovered. The practice went out of use when courts -of law became more liberal in granting new trials. 6 Johns. 479. Chancellor Kent says, “the present case seems to prove an exception to the modern rule, and to require of this court the exercise of that ancient jurisdiction, because here is a case in which the court of law has no power to award a new trial upon the merits.” The case at bar is within the principle and reason of the one last •cited. This defective statutory bond was executed after the term, when it was neither in the pewer of the party to apply for, nor of the court to grant a new trial. It is a case within the exception -of the modern rule, and the court is therefore permitted, upon the justest principles, to resort to “its ancient jurisdiction.” This -court considers this as an extraordinary case, in which the injured party has no redress, if a court of equity has no jurisdiction. •Great injustice may follow, especially to the complainant Oliver, should the judgment of the court of common pleas conclude the parties. From the peculiar circumstances of this case, and to prevent that injustice which may otherwise take place, this court believes no sound principle is violated by entertaining jurisdiction of this cause. But it is not enough that the court has jurisdiction •of the subject matter. We must be satisfied that the complainants have some merits, some grounds of defense to the action at [179]*179law, before the judgment will be set aside. It is not enough that the party has lost the naked right of a second jury trial in the Supreme Court. A judgment never ought to be opened to gratify a spirit of litigation.
From the novelty of the circumstances of the case, and from the fishing grounds assumed in the bill, in order to catch an equity as well as the amount in controversy, a vast many exhibits, and a geeat body of testimony, are found with the record. The evidence in the cause shows most satisfactorily *that the complainants have grounds of defense to the action at law.
It is not proper for this court to say what effect that evidence ought to have, or may have, upon an issue between the parties. Nor does it anywhere appear, nor was it necessary it should appear, that all the evidence is produced in this cause within the power of the parties. It is competent for the parties to produce other testimony in explanation of their rights and the merits of the cause. The complainants can not ask more of this court than to be restored to what they have lost, without their default. If the defendant had a just claim upon the complainants to the amount of his verdict and judgment, he has it still, and can prosecute it in the Supreme Court as well now as he could if the appeal bond had, in form, met the approbation of the court; if he had not, to enforce the judgment would be against all equity. As to accepting the bond, the mistake originated with the agent of the law as well as the appellant. The clerk was wholly ignorant of the law, or of the construction which had been put upon it, as to the penalty of the bond. We are not, however, prepared to say that a mere mistake in law of a party would give this court jurisdiction, although there are some cases which seem to go that far. 3 Wheat. 174; 2 P. Wms. 315. It seems to this court this would be laying down the principle too broadly. There must, in general, be other circumstances to authorize the interference of a court of equity. Perhaps ii would be well to make the case, in addition to a mistake in point of law, one m which it would be .against conscience for the other party to insist upon, or which, at once, would shock the moral sense, if enforced. This is that case, as the bill and evidence disclose it. The respondent has obtained an advantage by the misprision of the clerk, or the mistake of one of the complainants, which he is attempting to retain, when he must know that the appellant has acted, so far as it respects the [180]*180pursuit of his legal rights, with perfect good faith, and with all reasonable diligence. He must also know that the complainants, especially one of them, have some legal grounds of resisting his claims in a court of law. The law would be dishonored if courts -were furnished with no powers to place the parties thus situated in statu quo, and thus prevent probable injustice. There *is no principle to be found in the books which forbids a court of chancery from granting relief under such circumstances. Reason, justice, equity, require it.
This causo, upon the settled rule that when the court of chancery has gained jurisdiction of a cause for one purpose it may retain it generally, will remain in this court. This being the unanimous opinion of the court, it is therefore ordered, adjudged, and decreed that the action at law, the judgment in which is enjoined in this cause, be docketed in the Supreme Court in the county aforesaid; that the declaration be so amended as to make said Martin Baum a party thereto; that the said Martin cause his appearance to be entered in the said action, plead thereto the general issue, and that the cause stand at issue for trial, on the merits, at the next Supreme Court for said county. On the trial, no objection shall be taken for misjoinder or want of parties, farther than this : If it should appear that the plaintiff has a good cause of action against Oliver, arising out of the transaction in litigation, but not against Baum or any other of the company in the pleadings named in these causes, then a verdict shall be taken against said Oliver, and not against said Baum; if it should appear on the trial that the plaintiff has cause of action, growing out of the transaction in litigation, against the said Baum alone or the said Baum and others, then the verdict shall be taken against the said Baum, and in favor of the said Oliver. In this trial no exceptions shall be taken to the depositions in this suit in chancery or the action enjoined, but they may be then read, unless there may be other legal objections taken and sustained.
This cause to stand continued for farther proceedings, etc.