§ 765. Appellate jurisdiction in England. It is said that the decrees of the chancellor in England were originally final and conclusive, and that no appeal from his decision seems ever to have been allowed before A. D. 1581.8 On the growth of the chancellor's jurisdiction, the right of appeal to the house of lords became established. It is said that the appellate jurisdiction in equity in the English courts was two-fold, viz.: (1) In the king, whose conscience was ill administered, and who might issue a special commission pro re nata to reconsider his chancellor's decree; and (2) in the house of lords, on petition to them, as to the supreme judicature of the realm. The latter course of procedure entirely superseded the former; but in the latter part of the seventeenth century a dispute arose, respecting its validity, between the houses of lords and commons, and it was contended that the appellate jurisdiction in equity, like that on writs of error at common law, could only be exercised under a reference from the crown, and not on a mere petition to the lords. At the meeting of parliament, after the prorogation in February, 1677, the commons abandoned their contest, and the jurisdiction was thereafter exercised without dispute. The jurisdic and dilatory proceeding of correcting a decree by bill of review or appeal, which were the remedies after enrollment of the decree, he was required to enter a caveat against enrollment, which would stay it long enough to give him an opportunity to file his petition for a rehearing. Mitford & T. Pl. & Pr. in Eq. 488, 489; Adams, Eq. 397; Hughes v. Garner, 2 Younge & C. 335; Sheehy v. Muskerry, 7 Clark & F. 22; Dearman v. Wych, 4 Mylne & C. 550; McDermott v. Kealy, 1 Phillips, 267; Andrewes v. Walton, 8 Clark & F. 457. 3 Mitford &T. Pl. & Pr. in Eq. 489. 4 Mitford &T. Pl. & Pr. in Eq. 489. See 3 Bl. Comm. 454. Adams Eq. 397. For history of the occasion and nature of this contest, see Adams, Eq. 398, citing Hale, Jur. H. L., Hargrave's Pref. pp. xcix.-cxxiv.; Governor of Ulster v. Bishop of Derry, Shower, Parl. Cas. 81. Adams, Eq. 398. See Hale, Jur. H. L., Hargrave's Pref. pp. cxxv.clxvii.; Macqueen, Pr. 70-92. A resolution which the house of commons had previously passed, "that whosoever shall solicit, plead, or prosecute any appeal against any commoner from any court of equity before the tion was confined to appeals in equity, and did not extend either to the administrative power in lunacy, or to the jurisdictions conferred by statute, unless where such appeal was expressly given, or where the statutory jurisdiction was a mere extension of a previous equity." $ 766. Appealable orders and decrees. The mode of obtaining the interposition of the appellate tribunal in the case of an appeal from the court of chancery was by petition of appeal, which might be preferred from an interlocutory, as well as from a final, order, in which respect appeals from courts of equity by petition differed from appeals by writ of error from the judgments of the courts of law, which would only lie where the judgments were final; the reason for the distinction being stated to be that courts of equity often decided the merits of a case in intermediate orders, and the permitting of an appeal in the early stage of the proceedings fre quently saved the expense of further prosecuting the suit, but, in actions at law, no such orders intervened, consequently a writ of error could not be brought before final judgment. Although appeals would lie to the house of lords from the interlocutory orders of courts of equity, it was only in cases where such orders had been pronounced by the lord chancellor. In other cases, appeals from the inferior judges could not be maintained unless they had been signed and enrolled, in which case, as the signature of the lord chancellor (which was necessary before house of lords shall be deemed and taken a betrayer of the rights and liberties of the people of England," though not in terms rescinded, seems to have been the last act of resistance of the house of commons, which, at the meeting of parliament after the prorogation in February, 1677, appears to have tacitly abandoned the contest. Adams, Eq. 398. 7 Adams, Eq. 398, 399; Bignold v. Springfield, 7 Clark & F. 71. 8 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1633; Palmer, Pr. H. L. 1. It may, however, be stated that, as a general rule in the United States, the right of appeal is confined to final decrees, though by statute in many jurisdictions appeal may be taken from interlocutory orders appointing receivers, granting injunctions, and other matters of a similar nature. For distinction between interlocutory and final decrees, see supra, § 700, a decree or order could be enrolled) converted the decree or order, though pronounced by the master of the rolls or a vice-chancellor, into a decree or order of the lord chancellor, an appeal would lie from it to the house of lords. Where a decree or order had been pronounced by the lord chancellor, no enrollment was necessary to enable the party aggrieved by it to appeal. It was at one time thought that an enrollment of the decree was necessary before an appeal to the house of lords, but it is said by Mr. Daniell that such notion was erroneous, and originated in a mistake.10 The enrollment of decrees for the purposes of appeal was only necessary where the decree appealed from had been pronounced by the master of the rolls or a vicechancellor.11 Under the English practice, except in the cases of an heir at law, or of a rector or vicar, who were entitled to issues as a matter of right, the granting of an issue was a discretionary act, but a mistake in the exercise of that discretion was a just ground of appeal; and therefore, if the court refused or granted an issue, and the court of review should think that the contrary decision would have been a sounder exercise of discretion, it would rectify the order of the court below accordingly.12 No appeal would lie from an order not made in a suit.13 An appeal would not lie from an order made by the court under the authority of an act of parliament, specially authorizing such 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1634. 10 2 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1222. See Parker v. Downing, 1 Mylne & K. 634; Staunton v. Oldham, 2 Atk. 383; Andrewes v. Walton, 6 Jur. 519. 11 2 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1223; Cunyngham v. Cunyngham, Amb. 91; Barlow v. Bateman, 2 Brown, Parl. Cas. 272. See Wright v. Wright, 1 Ves. Sr. 326, 409. 12 2 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1289, 1290; Hampson v. Hampson, 3 Ves. & B. 43; Nicol v. Vaughan, 2 Dow. & C. 420. See Winchilsea v. Garetty, 1 Mylne & K. 253; Townsend v. Graves, 3 Paige (N. Y.) 457; Belknap v. Trimble, 3 Paige (N. Y.) 601; Gardner v. Gardner, 22 Wend. (N. Y.) 526; Drayton v. Logan, Harp. Eq. (S. C.) 67. 18 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1634; Rochfort v. Ely, 1 Brown, Parl. Cas. 450. (801) order, unless the power of appeal was given by the act itself.1 It was also held that a decree made on default of appearance at the hearing was incapable of being appealed from, unless a special ground was shown for indulgence.15 After a decree was made absolute by default, and an appeal was carried up to the house of lords, the house would not allow any proofs to be read by appellant, because no proofs were, in such cases, read in the court below.16 A decree by consent could not be appealed from.17 In order to warrant an appeal, it was sufficient that some litigated question had been decided, and that it was certified by counsel to be fit for reconsideration.18 § 767. Manner of taking appeal. Under the English chancery practice, any person who felt himself aggrieved by a decree or order of the court of chancery was entitled, as a matter of right, to appeal to the house of lords.19 A material difference existed with regard to the method of appealing to the house of lords from the decisions of courts of equity from that which was the practice in cases of appeal from the decisions of ordinary jurisdictions. In the latter case, the appeal was commenced by a writ of error, which was the sovereign's writ, commanding the record itself to be brought into the house of lords in order that it might be inspected, and that the errors assigned, if any be found to exist, 14 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1635; Wall v. Attorney General, Lords' Journ. 1822; Palmer, Pr. H. L. 5. 15 Adams, Eq. 400; Booth v. Creswicke, Craig & P. 361; Stubbs v. 10 Ves. 30. See, also, 44th Order (English) of August, 1841. 16 2 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1209; Button v. Price, Finch Prec. Ch. 212. 17 Adams, Eq. 400; Wood v. Griffith, 1 Mer. 35; Woodmason v. Doyne 10 Clark & F. 22; Bradish v. Gee, Amb. 229; Harrison v. Rumsey, 2 Ves. Sr. 488. See, also, Coster v. Clarke, 3 Edw. Ch. (N. Y.) 405; Atkinson v. Manks, 1 Cow. (N. Y.) 709; French v. Shotwell, 5 Johns. Ch. (N. Y.) 564; Kane v. Whittick, 8 Wend. (N. Y.) 219. See supra, § 704. 18 Adams, Eq. 400. 19 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1633. might be corrected there, and it was only upon the production of the record itself that the house of lords acquired authority in that particular suit. In the case of appeals from the court of chancery, however, the proceeding in the house of lords was commenced by a petition from the party conceiving himself to be aggrieved, to the lords spiritual and temporal in parliament assembled, setting forth the proceedings below, and praying such redress as the circumstances of the case required. This petition was required to be answered by the respondent, who generally admitted the proceedings below as stated in the petition, and referred to them when produced, and it was upon the documents below, as set out and admitted in these proceedings, and not upon the record itself, that the house proceeded in hearing the appeal.20 Under the English practice, the manner of taking an appeal was by petition stating the order or decree complained of, and the subsequent orders, if any had been made, and praying for a reversal or variation. The petition was signed by two counsel, who must have been either counsel in the cause below, or attended as counsel on the appeal, and was required to be accompanied by a certificate that, in their opinion, there was reasonable cause for appeal. It was not necessary, though sometimes convenient, that the appeal should state the ground of objection. On appeal to the house of lords, it was required that, besides the mere petition of appeal, each party should deliver a printed case, signed by counsel, containing a narrative of facts, and a summary of the reasons on which he relied, and accompanied by an appendix of evidence.21 A petition of appeal to the house of lords was nearly the same in form, mutatis mutandis, as a petition for rehearing in the court of chancery.22 Notice of an appeal was required to be given.23 The petition being filed in the proper 20 2 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1222. 21 Adams, Eq. 399. See Wood v. Milner, 1 Jac. & W. 616; Giffard v. Hort, 1 Schoales & L. 398. 22 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1636. 23 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1636; Lords' Journ. 1812; Order of April 9, 1812. |