Winans v. Dunham

5 Wend. 47

• Court: New York Supreme Court
• Decided: May 15, 1830
• Status: Published

Opinion

By the Court,

Marcy, J.

The decision of the chancellor iff conclusive upon the rights of the parties here. It was objected that it did not appear that the decree had been duly enrolled. I apprehend that an enrolment is not necessary to give validity to a decree, or to make it evidence in a court of law. The case of Wilson fy Gibbs v. Conine, 2 Johns. R. 280, does not establish the doctrine that an enrolment must be shewn, to make a decree evidence. The court decide against a decretal order awarding an execution, reciting a prior decree. The order reciting the substance of the prior decree was not proper evidence of such decree; the original should have been produced. The prior decree was to be proved, and the court say the original decree, and not a decretal order reciting the substance of that decree, should have been proved.

I think the bill and answer and the original decree in the cause duly exemplified, and as they are now produced to us, are the proper proof of what is in issue and decided in the chancery suit between these parties. The decision in that suit was fatal to the defence offered in this.

Judgment for plaintiff.