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may be dismissed this honourable court, with costs, to be adjudged to this respondent.

G. H. Sol'r. for Respondent.

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OF SETTING DOWN THE CAUSE, AND OF HEARING IN THE

COURT OF ERRORS.

1. Both par ties may set down the cause.

Special Contents.

1. Both parties may set down the cause.

II. How if appellant does not bring on the hearing.
III. Of postponing the hearing.

IV. Delivering the cases.

V. Order in which the counsel are heard.

VI Decisions respecting who must be parties.

VII. Decisions respecting change of parties.

VIII. When the merits will, and when they will not be examia

ed into.

IX. Decision of the court.

X. Costs on appeal.

XI. Remitting decree of this court to the court of Chancery.

THE cause being at issue in this court upon the respondent's filing his answer to the petition of appeal, either party, or both parties may set down the cause for hearing. This is done by a motion in open court, that a day be assigned for the hearing of the cause. The usual motion is, that the cause be set down to be heard in its order next after the causes previously set down. There is no rule of court which requires the party to give notice to the opposite party of the cause

being set down, but both parties are required to attend to it at their peril.

2. How if appellant does

the hearing.

If the appellant has set down the cause, but fails to bring it on, or if he has neglected or omitted to set it not bring on down, in either case the respondent, provided he has also had the cause set down for hearing on his part, is entitled to have the cause brought on to be heard ex parte. And in this case, as the court will not listen to an ex parte argument, the respondent may have the appeal dismissed, inasmuch as no person appears on behalf of the appellant to impugn the decree in the court below. He is therefore entitled to his judgment in the court below. (a)

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3. Of post poning the

By a standing rule of the court, when a day is pointed for the hearing of any appeal, it cannot be hearing. altered but upon petition; and no petition will be received in such case unless two days notice thereof be given to the adverse party, of which notice oath must be made at the bar of the court.

The rules also prescribe, that previous to any argu-. Deliver ment of counsel upon any appeal, a brief state of the ing the cases. case of each party, as it appears on the pleadings and exhibits should be delivered to the court, and also that ten days at least previous to the hearing the cases which have been prepared by the parties should be furnished the court. It is not usual in practice to adhere strictly to this rule respecting the ten days; and although the cause cannot be set down for hearing until cases are delivered, (b) yet it is the common practice to proceed with the hearing, even though ten days. may not have elapsed between the time of furnishing the cases, and the day assigned for the argument.

(a) Bisselv. Dennison, 14 Johns. Rep. 483. (b) 2 Cases in Error, 86:

which the

counsel are

heard.

When the cause comes on to hearing, if the transcripts, or certified copies of the pleadings, evidence, and papers read in the court below, be not filed in the court of Errors, the counsel for the appellant will not be allowed to read the original papers, though produced by register of the court of Chancery, but the appeal will be dismissed with costs. (c) One of the 5. Order in counsel for the appellant opens the cause, then the evidence on the side of the appellant is read, which done, the other counsel for the appellant may make observations on the evidence; then one of the counsel for the respondent is heard, and the evidence on his side read, after which the other counsel for the respondent may be heard, and one counsel only for the appellant replies.(d) But on a motion on a petition, that other parties should be joined in the suit, the counsel for the petition are to be heard first, (e) which is analogous to the proceeding in the court of Chancery, where on a rehearing, the party who complains of a decree, and seeks to have it corrected, is entitled to open and close the argument.(f)

6. Decisions respecting who

ties.

On an appeal from an order of the court of Chanmust be par- cery, postponing the hearing of a cause until the assignees of two of the parties who had become insolvent pending the suit, should be made parties, the court of Errors will not hear or decide on the merits of the cause.(g) And when an objection is made in the court below of a want of proper parties, it may be insisted on, on the appeal.(h) When the defendant below neglects to appeal from a decree against an ob

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jection made to the want of proper parties to the bill, but appeals from a final decree which is reversed on that ground, the court of Errors will order that the respondent have leave to dismiss his bill in the court below, or amend it by adding proper parties, and if he elect the latter, that the present parties have leave to use all testimony taken in the cause, subject to all just exceptions, that each party pay his own costs in the court above, and that costs below abide the event.(i)

Where a bill was brought to obtain a sale of mortgaged premises, to which the mortgagee, who had delivered the mortgage without a written assignment to the complainant below, was not made a party, the court of Errors, on reversing a decree for a sale, on the ground of the want of proper parties, gave leave to the respondent to have his bill dismissed, or to add proper parties on payment of the costs in the court below.(j)

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change of par◄

Where a decree had been pronounced in the court 7. Decisions of Chancery, in a suit brought by certain creditors of respecting a bankrupt against the bankrupt and his assignée and ties. others, and afterwards the assignee was removed, and a new assignee appointed by a majority of the creditors of the bankrupt, and the cause having been brought by appeal to the court of Errors, the appellant presented a petition for the stay of proceedings, until the new assignee was made a party by the respondents, the court refused to grant a rule for the stay of proceedings.(k)

If any of the parties in interest in a cause, become changed by death or otherwise, pending an appeal to

(i) Hickock v. Scribner, 3 Johns. Cas. 311.

(j) Johnson v. Hart, 3 Johns. Cæs. 522.

(k) Sands et al. v. Codwise et al 2 Johns. Rep. 487.

8. When the merits will,

will not be ex

the court of Errors, the cause will be remanded, without prejudice to either party, in order that the court below may take the necessary steps to bring in the parties, whose interest may have accrued since the appeal.(1)

This court has full power to examine, hear, and finally determine, all matters concerning the appeals, and may reverse, affirm, or alter any judgment, decree or order, which may have been made in the court of Chancery, but it will not always examine into the full merits of the cause.

Thus, if the parties in the court below neglect to exand whe they cept to the master's report in a cause, it seems, that amined into the court of Errors will not enter into an investigation of the calculations made by the master, but will consider the exceptions as waived by the party.(m) So on an appeal from an order granting an injunction to stay proceedings at law, the court of Errors will not hear and decide on the merits of the cause, if the court below had not heard the cause on the merits before the order. (n) And on an appeal from an interlocutory order, the court will not permit evidence to be read which was not read in the court, nor will they hear and decide on the merits unless the merits have also been heard in the court below.(0) But even on an appeal from an interlocutory decree, the court of Errors will, if the merits are fully before them, take them into consideration and make a final decree.(p)

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(?) Wilson v. Hamilton, 9 Johns. 442. (m) Delabigarre v. Bush, 2 Johns. Kep. 490.

Johns. Rep. 543. 14 Johns. Rep. 527.

(p) LeGuin v. Gouverneur & Kemble,

1 Johns. Cas. 456. Bush v Livingston, 2

(2) Trustees of Huntington v Nicholl, Caines Cases in Error, 66. Beebe and 3 Johns Rep. 566. others v. The Bank of New-York, 1

(0) Deas v. Thorn and others, 3 Johns. Rep. 529.

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