MOORE US. WRIGHT.

Wright, executed their note, to the defendant, Moore; that suit had been instituted, by Moore, against the complainant and John Wright, and judgment recovered. That Doswell had paid off, and satisfied the judgment, notwithstanding which the sheriff was about to make the amount, out of the complainant's property, by an execution.

At September Term, 1927, an order of publication was made, as to Moore, but no answer was ever filed by him; nor is there any judgment, pro confesso, against him.

At March Term, 1829, James Doswell, one of the payors, who is charged by the bill, to have discharged the judgment, was made a defendant.

Doswell answered, alleging, in substance, that John Wright and himself had executed the note, as securities for William Wright; that he had paid the amount of the judgment, and taken a receipt from Moore; and that the judgment had been assigned to him, to enable him to reimburse himself; and that the sheriff was directed by the plaintiff to said judgment, to make the money, and pay it over to said Doswell.

The deposition of Malcolm Gilchrist, is the only one, which appears to have been taken in the cause; and that is so confusedly written, that it conveys no distinct idea to the mind.

The allegation, that Doswell has discharged the judgment, is nowhere sustained by proof.

The complainant states in the bill, that the receipt of Moore, for the amount of the judgment, is made an exhibit; but it no where appears, in the record. It is true, that Doswell's answer admits its execution,

MOORE US. WRIGHL.

but this cannot be received as evidence against Moore.

In fact, the whole case appears to have been acted on, in the Court below, without the least respect to regularity of proceeding.

Moore, the payee of the note, in whose favor the judgment was recovered at law, is perpetually injoined against enforcing his judgment, without having been regularly brought into Court.

An order of publication appears to have been made against him, but there is no proof, that publication was ever made; nor was a judgment, pro confesso, ever rendered against him.

A co-obligor with the complainant, who, during the progress of the cause, is made defendant, answers, that he has paid the debt to Moore, and a perpetual injunction is the consequence, without any proof of the payment, or an opportunity being afforded to Moore, to contest it.

Under these circumstances, this Court does not feel itself authorised, to examine the points made by the brief.

The decree is reversed, and the bill dismissed, at the costs of the defendant in error.

SIMPSON US. M'LAUGHLIN.

SIMPSON VS. M'LAUGHLIN.

1. Semble--That where a decree is had in a Chancery cause, and it is taken to the Supreme Court, on appeal, and affirmed; the Court below has the power to enforce, and carry out the decree; as though it had never been in this Court.

PER CURIAM. The motion in this case, has not been of so definite a character, as to demand any opinion of the Court: we are willing, however, to indicate our views upon the points which have been made by the counsel of Simpson; but, with the understanding, that the practice is not to be considered, so settled, by any thing which may now be said, as to prevent the several questions from being considered open for argument, whenever they may occur again. The reason of this, is, no counsel has resisted the motion.

It appears, that some terms ago, a decree was made by the Circuit Court of Dallas County, in favor of Simpson, the complainant, against M'Laughlin, the defendant, for a considerable sum of money, and by which, beside, a receiver was appointed, to receive from M'Laughlin, the books, notes, and other papers, and the possession of a ware-house-all being the property of a late firm, in which the parties had been partners.

The decree only decided, with respect to the rents of the ware-house, &c. to the time at which the suit was instituted. From that decree M'Laughlin, appealed to this Court, and, at the last term, it was affirmed.

At the succeeding term of the Circuit Court, a

SIMPSON US. M'LAUGHLIN.

motion was made to appoint a new receiver-the one first appointed, having declined acting-and for an attachment to compel M'Laughlin to deliver up the papers, &c.

The Court refused to make any order in the case; assigning as a reason, as is stated, that this Court having entertained jurisdiction on the appeal, the decree must be final, and no subsequent order could be made.

Whether the decree was a final one, or not, was not discussed in this Court. There can not be a doubt, but that the Circuit Court should proceed to enforce the decree, which has been made by it, as if the case had never been in this Court. The decree has not been reversed; therefore, there is nothing to. prevent that Court from proceeding. An order has been made, appointing a receiver. If he had acted, M'Laughlin might have been compelled, by the process of the Court, to deliver the books, &c. to him: as he has not, another may be appointed in his stead, and the same course pursued, with respect to him.

As regards the rents of the ware-house, and other receipts of M'Laughlin, not embraced in the decree, or which have come to his hands, since it was rendered, it may probably be necessary to file another bill. The entry will be, that the motion is overruled.