Sands v. Hildreth

12 Johns. 493

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: February 15, 1815
• Status: Published

Opinion

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.