Gelston v. Codwise

The Chancellor. This bill is founded on the decree of the court for the correction of errors, of March, 1812, (10 Johns. Rep. 523.,) which declared, that the moneys arising from the real estate of Comfort Sands, at Brooklyn, and which were then in the court of chancery, or might thereafter be brought in, after paying the costs and charges of Codwise and others, ought to be applied to pay the judgment creditors of Sands, whose judgments were docketed prior to his bankruptcy, according to priority, in preference to his other creditors. The bill accordingly calls for a discovery of the state of those several judgments, and the amount due thereon; and that the defendants may pay the plaintiff the amount of his judgment, out of the moneys arising from the proceeds, generally, of all the real estates of Sands. But the decree went further, and prescribed, specially, the terms of the relief afforded to the present plaintiff. This court was to direct an inquiry as to the costs and charges of Codwise and others, and as to the judgments which were docketed prior to the bankruptcy of Sands, and remained unsatisfied of record ; and that those costs, and the unsatisfied judgments of record, prior in point of time to that of the plaintiff, were first to be deducted from the particular fund so appropriated to pay the plaintiff. The decree further directed, that, upon such inquiry, the fact of prior judgments remaining unsatisfied of record, and of which satisfaction was not voluntarily confessed before the master, was to be conclusive upon the plaintiff, as to the amount to be retained, in preference to his judgment. Upon these terms, and in obedience to that decree, an inquiry was directed by this court; and the plaintiff, finding that this course would not exactly meet his wishes and pur [194] pose, has filed the present bill, which is not strictly a bill to carry the decree of the court aboye into execution, but is more like a bill of review, to correct the alleged imperfection of that decree. The bill seeks relief out of the proceeds of all the estate of Sands, without confining himself to the proceeds of the Brooklyn estate; and it seeks for a discovery of the payment of the judgments by other means than the record, or the voluntary confession of the party ; and it seeks for payment from moneys not then in chancery, nor afterwards brought in, but which had been previously appropriated by the officers of the court. In all these respects, the bill seeks for relief beyond the terms of the decree, though that decree was obtained on his own motion, and on his own appeal. The defendants, accordingly, in their answer, among other things, insist, that the plaintiff is limited to the terms of that decree, and the order made, in this court, to carry it into effect; and this they insist on as a bar to this suit, especially as that decree is in full force, and was obtained by the plaintiff’s own seeking. It struck me, at the very threshold of the argument, that the terms of that decree were the law of this court, and that no decree can be made here, or relief given to the parties in that suit, in variation from that decree. The more I have since reflected upon the case, the more I am impressed with the conviction that this is a solid principle, and one well grounded in reason and authority. It is the acknowledged doctrine of a court of review, to give such decree as the court below ought to have given ; and when the plaintiff below brings the appeal, the court above not only reverses what is wrong, but decrees what is right, and models the relief according to its own view of the ends of justice, and the exigencies of the case. The act organizing the court for the correction of errors, declares, that “ on appeals from any decree or order of the court of chancery, the court above is authorized and required, final [195] ly, to determine the same, and all matters concerning it; and to reverse, affirm, or alter the decree or order, and to make such other decree, or order, therein, as equity and justice shall require.” The court above acts, therefore, on appeals, in the given case, with all the plenitude of a court of equity of original jurisdiction ; and the special terms of the decree, whatever they may be, become, to this court, the law of that case, and no other, or further relief, can be administered to the party. Were it otherwise, there would be no such thing as a final end to litigation, and suits and decrees, on the same subject matter, would be multiplied so as to become embarrassing, inconsistent, and oppressive. It is infinitely better that decrees, in the last resort, however inconvenient or incomplete in their particular provisions in the particular case, should be acquiesced in, and finally close the controversy, than that they should be permitted to be amended, or extended by new original bills between the same parties, on the same subject matter. Such a precedent as the one now sought for, would tend to fix a character of dangerous instability and uncertainty on the administration of justice. It may sometimes become impossible, from accidents, &c., to carry a decree into effect, without a further decree of this court; but the general rule, in such cases, is not to vary the decree, even of the same court, except in certain cases where there may have been a mistake; (Mitf. 87. 1 Ves. 245.;) and it is said, that the house of lords, upon appeal, considers the law of the decree not to be examined on a bill to carry it into execution. (Mitf. 86, 87. Cooper, 99.) So, on a bill of revivor, the plaintiff cannot controvert the decree, whatever the defendant may do. (2 Ves. 232.) It is well settled, that a decree can never be impeached by an original bill; it can only be questioned by a bill of review. If a decree could be altered, or varied, by an original bill, a cause, as it has been frequently observed, would never be at rest, and there would be confusion and inconsist» [196] ency in the decrees of the court. (Read v. Hambey, 1 Ch. Cas. 44. Taylor v. Sharp, 3 P. Wms. 371. Wortley v. Birkhead, 3 Atk. 809. 2 Ves, 571. Shepherd v. Titley, 2 Atk. 348.) These are principles laid down in a series of decisions relative to decrees in the same court; but with respect to the decrees of the court of appeals, the objection applies with much greater force,, since in that case, the weight of authority is added to the sanctions of policy. It was, therefore, doubted by Lord Redesdale, (Mitf. 79.,) whether even a bill of review, upon error in the decree itself, can be brought after affirmance in parliament. The case of Barbon v. Scarle (l Vern. 419.) was somewhat analogous to the present attempt; but it seemed to be admitted as a settled point, that, after judgment upon appeal in the house of lords, this Court could not intermeddle further than to settle so much of the cause as the lords had remanded, and that it could not reverse or alter the order of the court above. The object of the present bill is to vary essentially the decree above, and to accommodate it to a new equity set up; for here is a different and much more extensive relief sought for, and one depending on different proof. But the decree above must be taken to be conclusive throughout, and it must be carried into effect in the mode there prescribed, and in no other; if it be not binding upon both parties, it cannot be binding upon either, and the whole decision would be set afloat. I am satisfied that this court cannot, with propriety, exercise the jurisdiction prayed for. The plaintiff must content himself with the terms of that decree, or he must come here upon equal terms with other creditors for his distributive share of the bankrupt’s estate, or he must be left to pursue his remedy at law upon his judgment. He elected his own mode of application to this court, in the first instance; and he afterwards, voluntarily, sought and obtained a decree in his favour in the court above. He is, and aught to be, concluded by the equitable relief tendered to [197] him by the terms of that decree. He cannot be permitted to reject those terms, and come here for a new decree. The counsel for the plaintiffs do not consider this merely as a bill of revivor or supplemental bill to carry the decree above into effect, for, in that view, it would be wholly unnecessary and useless, as nothing has happened to defeat the provision in that decree. They assert, it to be an original bill, founded upon. the equity contained in the decree in error. In that view, and for the reasons alleged, the bill must be dismissed, with costs. Decree accordingly.