produced and read, whereby it appeared, that your petitioner was a trustee of the lot and premises in the said deed mentioned, &c.; and under the impression that your petitioner was such trustee, your honor, as your petitioner humbly conceives, made the said decree in relation to the said lot: but, your petitioner now shows unto your honor, that he has since the said hearing, discovered that a defeasance to the said deed had been duly executed by many years before the sai.. hearing, and that the said deed had become null and void, and that your petitioner through inadvertence or forgetfulness, had neglected to take back the said deed, and have the same cancelled, &c. Whereupon, your petitioner humbly prays, that your honor will be pleased to vouchsafe a rehearing of this cause, before your honor, your petitioner submitting to pay such costs as the court shall award in case his complaint shall be found groundless. And your petitioner will ever pray, &c. day of Dated, the 1818. E. F. Sol'r. for Def't. We certify that we have perused the foregoing petition, and are of opinion, that a rehearing ought to be granted, as thereby prayed for. day of Dated, the 1818. M. N. L. M. Notice accompanying a copy of the petition served upon the opposite solicitor. In Chancery. Between C. D. Defendant, Sir, A. B. Complainant. Please to take notice, that the petition in the above cause, and the papers thereto annexed, (of which the annexed are true copies,) will be presented to his honor the Chancellor, at a court of Chancery, now holden at the City-Hall of the city of New-York, on the day of inst. at the first opening of the court on that day, or as soon thereafter as counsel can be heard; and that a motion will then and there be made, that the prayer of the said petition be granted, which motion will be grounded upon the said petition and the papers thereto annexed, and upon the pleadings, proofs and other proceedings heretofore had in the said cause. OF APPEALS. I. WHEN AN APPEAL WILL LIE. II. EFFECT OF AN APPEAL UPON THE PROGRESS OF THE CAUSE IN THE COURT OF CHANCARY. 11. PRACTICE AND PROCEEDINGS BEFORE THE CAUSE IS BEFORE I. When an appeal will lie. FROM a decree made by the Chancellor, an appeal lies to the court of Errors. The eighth section of the law concerning the court of Errors, provides, that all persons aggrieved by any sentence, judgment, decree or order of the court of Chancery, may appeal from the same, or any part thereof, to the court for the trial of impeachments and the correction of Errors, which court shall require the Chancellor to assign the reasons of such sentence, judgment, decree or order, and shall have full power to examine, hear, and finally determine all such appeals from the court of Chancery, and all matters concerning the same, and to reverse, affirm, or alter such sentence, judgment, decree or order, and to make such other order or decree therein as equity and justice shall require, and thereupon to remit the same with their judgment, decree and order in the premises, and all things concerning the same into the court appealed from, where such other proceedings shall be thereupon had, as well for execution or otherwise, as may be agreeable to equity and good conscience.(a) An appeal may not only be had from a final decree of the court, but from any interlocutory order: but (a) 1 N.K, L. 184. the time allowed for entering the appeal, differs when the decree is interlocutory, and when it is final. An appeal from an interlocutory order must be entered in fifteen days; a final decree may be appealed from, at any time within five years after it is made.(b) An appeal lies from an order of the court of Chancery, refusing to dissolve an injunction, and awarding costs against the defendant.(c) But no appeal will lie to an interlocutory decree dissolving an injunction.(d) No appeal lies from an order of the court of Chancery, refusing to dissolve an injunction, and such an order having expired, the appeal was dismissed.(e) Nor from an order of the Chancellor for the exam nation of witnesses: but if incompetent witnesses have on the hearing been admitted, there may be an appeal.(f) An appeal does not lie from an order for an attachment to bring up a party to answer interrogatories for a contempt, in disobeying a writ of injunction issued in a cause.(g) It seems also, that it will not lie from an interlocutory order, which does not involve a decision upon some matter touching the merits of a cause, and by which the party is aggrieved.(h) It does not lie from a decree pronounced by the court of Chancery, on the default of the defendant in not appearing at the hearing, after the cause had been regularly set down, and regular notice for that purpose.(i) Where a plaintiff in Chancery has been guilty of laches, or waived his claim to costs by his neglect and inattention in obtaining the final de (b) 1 N. R. L. 134. (c) M Vickar v. Wolcott, 4 Johns. Rep. 510. S. P. Newkirk v. Willett, 2 Johns. Cas. 413. (d) Young v. Grundy, 6 Cranch, 51. 3 Johns. Rep. 566. (g) Buel v. Street, 9 Johns. Rep. 443. (h) Ibid. (i) Sands v. Hildreth, 12 Johns. Rep, 495. 1. Process cannot issue peal. ings stayed un order. cree, no appeal will lie from the order of the Chancellor refusing his application, for costs.(j) An appeal does not lie for costs merely.(k) II. Effect of an Appeal upon the Progress of the Cause in the Court of Chancery. Special Contents. I. Process cannot issue, pending an appeal. II. Proceedings are stayed unless on special application to the court. III. A case where an appeal did not suspend proceedings. AN appeal from a final decree, regularly entered bepending an ap-fore the decree is perfected, prevents the issuing process thereon, until the cause be heard and determined.(a) It stays in the first instance, all proceed2. Proceedings in the court upon the point appealed from, and if less by special the party wishes to proceed notwithstanding the appeal, he must apply to the Chancellor for leave, and unless the court of Errors be at the time actually in session, and have the cause before them, this court must exercise its discretion as to the propriety of allowing the party to proceed.(b) Our practice differs in this respect from the English; for in England, an appeal to the house of lords, does not stay the proceedings unless by special order of the house: there the plaintiff must apply to the house of lords for a special order to stay the proceedings, here the defendant must apply to the Chancellor for leave to pro (j) Travis and others v. Waters, :2 Johns. Rep. 500. (k) Eastburn & Downes v Kirk, 2 Johns. Ch. Rep. 307. Travis and others v. Waters, 12 Johns. Rep. 500. (b) Green and others v. Winter, 1 Johns. Ch. Rep. 77. |