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The better practice seems to be to make the application to the house of lords, for even the order staying proceedings may be appealed from: Huguenin v. Baseley, 15 Ves. 182; Lewes v. Morgan, 5 Price, 468.

By our practice, an appeal from an interlocutory decree does not stay proceedings except by an order of this court or the court of chancery for that purpose. If an appeal from a final decree be filed in ten days, it prevents issuing process on the decree: Rules of the court of chancery, rule 20.

Prior to the revised statutes in New York, the appeal ipso facto stayed proceedings on the point appealed from. An order for leave to proceed was necessary: Green v. Winter, 1 Johns. Ch. 81 [7 Am. Dec. 475]; 2 Hoffman's Ch. Pr. 31; Messonnier v. Kauman, 3 Johns. Ch. 66.

The injunction being dissolved, the appeal can not revive the process or give it force. It can not be revived but by a new exercise of judicial power: Hoyt v. Gelston, 13 Johns. 140; Wood v. Dwight, 7 Johns. Ch. 295; Hart v. Mayor of Albany, 3 Paige, 381.

It is, in effect, the granting of a new injunction. It is said that this is an original exercise of judicial power; and unquestionably it is so. It is thereupon objected that this is a mere appellate tribunal, and can not exercise such power. The consequence does not follow. It may not exercise original power in acquiring jurisdiction over the cause. But that jurisdiction once regularly obtained, this court may exercise original jurisdiction over the parties, especially when the proceeding is in rem, and the object of the order to maintain unchanged, as far as practicable, the status or condition of the subject-matter o the controversy during the pendency of the suit. It is on the same principle upon which a court of common law, in an action of ejectment or dower, will make an order upon the party in possession, restraining the commission of waste. And a court of equity, prior to the hearing or argument, will, upon the same principle, grant a temporary injunction until the case can be heard. It is an inherent power in all superior tribunals, essential to the attainment of the object of litigation and the ends of justice. I am of opinion, therefore, that this court must of necessity have the power to make the order applied for.

The power existing, is this a proper case for its exercise? The question presented is not whether the appellate court will stay proceedings in the court below, upon the point appealed from, pending the appeal; but it is, whether upon an appeal

from a decree of the chancellor denying or dissolving an injunction, the appellate court will grant a temporary injunction until the final hearing of the appeal. We are upon this point entirely without precedent except in our own state. No precedent can be found either in the house of lords or in the court of errors of the state of New York, whose practice is strongly analogous

to our own.

The first case in this court of which I have any knowledge is that of Suyaum v. New Jersey Railroad Company, at January term, 1849. That order, it is well known, was obtained by surprise, without notice, in the absence of the opposing counsel, and under circumstances which should prevent its ever being resorted to or relied upon as a precedent. The language, moreover, in which it is couched leaves it extremely doubtful whether the court were in fact apprised of the real design of the order. It purports to be a mere order to stay proceedings upon the decree.

In the case of Chetwood v. Brittain, at May term, 1843, an order was granted in express terms staying proceedings at law. This is stated in the order to be by consent.

Since the present organization of the court, at July term, 1845, a similar rule was granted in Chegary v. Scofield. This rule, too, was obtained by surprise, without argument, in the absence of opposing counsel; and at the succeeding term was set aside by a decided vote of the court. Unfortunately the precise ground of setting aside the order does not appear. It may have been, and probably was, upon the ground that it went beyond the prayer of the original bill, and was made to operate upon persons not parties to the record.

It is worthy of notice that both in Chetwood v. Brittain and in Chegary v. Scofield the injunction was merely auxiliary to the main design of the suit. The object of the bill in one case was to avoid a bond; in the other, a sheriff's sale. The injunction in the former case restrained a suit at law upon the bond; in the latter, the delivery of the sheriff's deed. In both cases the order restraining proceedings was made without the least reference to the merits of the case. The original design of the order was merely to restrain proceedings until the case could be heard. In neither case were the merits necessarily involved, nor could the order operate to the serious detriment of the party enjoined. But in the present instance the whole object of the bill is the injunction. The sole inquiry is, Should the injunction issue? The chancellor, upon a full consideration, has decided that the

njunction should not issue. This court are now asked, not to restrain proceedings in the court below, but to restrain the company from proceeding under their charter. The power of this court is invoked to arrest the construction of the road; to do, what upon mature consideration the chancellor has decided ought not to be done. It is to reverse, at least temporarily, the order of the chancellor, and to grant the complainant in limine the prayer of his bill, before the cause has been heard, before his right to an injunction has been considered or settled in this court, and that too, after a solemn decision in the court below that no injunction should issue. In many cases, and probably in this, a temporary injunction before final hearing will effect the design of the applicant as effectually as the granting of a perpetual injunction. It will work an irreparable injury to the party enjoined, and compel them, in order to avoid that evil, to submit to any terms which the adverse party may dictate. It is manifestly very high and delicate exercise of power-one which should by no means be exercised as a matter of course, but only upon the most imminent necessity.

The granting of this order necessarily involves the merits of the whole controversy. The argument upon the motion has necessarily and unavoidably turned upon the merits. The cause has been argued precisely as if we were now upon the hearing of the appeal. I think the merits ought not to be heard upon this summary motion. The practice will lead unavoidably either to a decision upon a partial hearing, or to a prejudging of the case upon its merits, in contravention of the rules and practice of the court.

It is a power which, in all cases where the merits are thus necessarily involved, had better be left to the discretion of the chancellor. He may properly exercise it, and with much more safety than this court are likely to do. He is familiar with the case, and may, without the necessity of a further argument, if he thinks the case demands it, grant a temporary injunction until the cause can be heard in this court.

That course was adopted in the case of Hart v. The Mayor of Albany, 3 Paige, 386. The bill was there filed for the purpose of restraining the corporation of Albany from removing from the Albany basin a floating store-house, which the complainant had erected and moored therein, against the ordinance of the corporation. On filing the bill, an ex parte order was made for an 'injunction restraining the defendants from carrying the provision of the ordinance of the corporation into effect. On the

coming in of the answer the injunction was dissolved. From that decree Hart, the complainant, appealed. Pending the appeal the corporation were proceeding to carry the ordinance. into effect, by taking down and removing the store-house. The appellant thereupon applied to the chancellor for an order restraining proceedings pending the appeal. And upon the complainant's solicitor stipulating to expedite the cause, so as to bring it to a hearing at the next term of the court of appeals, a temporary injunction was granted by the chancellor until after the next December session of the court of appeals, unless the appeal should be sooner disposed of by that court.

The exercise of this power of the chancellor may always preserve, pendente lite, the just rights of the parties litigant. There is no necessity for its exercise by this court.

The opinion of the chancellor in Monkhouse v. The Corporation of Bedford, 17 Ves. 380, shows that the power even in that court will be exercised with great caution, and only when it can be done consistently with the rights of the party in whose favor the decree is made. The exercise of the power by this court in cases circumstanced like that now under consideration, will unavoidably be productive of serious evils, without any corresponding benefit. It would be far better, and more conducive to the ends of justice, to permit the appellant in all injunction bills, where the injunction is denied by the chancellor, to bring on the final hearing of the cause immediately upon the coming in of the appeal.

The motion must be denied.

In this opinion SINNICKSON, PORTER, SCHENCK, and SPEER, JJ., and CARPENTER, Justice, concurred.

Motion denied.

RANDOLPH, J., delivered a dissenting opinion, in which MoCARTER, J., concurred.

CITED in De Godey v. Godey, 39 Cal. 167, to the point that when the court below has seen proper, in the exercise of its discretion, to continue an injunction in force until the hearing of the cause, its determination, in so far as it rests upon the effect of the denial of the equities of the bill merely, is entitled to great consideration by the supreme court, and will not be disturbed by it, except under peculiar circumstances, or unless an abuse of discretion is made to appear.

HALL'S EXECUTORS v. LAMBERT'S EXECUTORS.

[3 HALSTED'S CHANCERY, 651.]

ACCIDENTAL OMISSION TO INSERT IN MORTGAGE THE AMOUNT of the bond which it is given to secure does not invalidate the mortgage nor postpone its lien to that of a subsequent mortgage.

THIRD PERSON PAYING DEBT SECURED BY MORTGAGE, AT MORTGAGOR'S REQUEST, is subrogated to the rights of the mortgagee as against a subsequent mortgage.

BILL of foreclosure. The opinion states the case.

P. D. Vroom, for the appellants.

J. H. Wakefield and A. Wurts, for the respondents.

By Court, GREEN, C. J. The controversy in this cause is a question of priority between two mortgagees, each holding a mortgage upon the same premises.

The appellants' mortgage is prior, both in date and registry, but several reasons are assigned why this priority has ceased to exist. It is insisted that it is not a valid mortgage, because it was executed in blank, and the sum which it was designed to secure does not appear either upon the mortgage or registry. The mortgage is clearly a valid operative instrument as between the parties. The mortgage could not be prejudiced in a court of equity by the accidental omission to insert in the mortgage the sum for which the bond was given. The mortgage is redeemable upon the payment of a sum of money agreeably to the condition of a bond given by the mortgagor to the mortgagee, of even date with the mortgage, and payable at a day specified. There is no room for question as to the identity of the bond. The blank in the bond was filled. The amount for which the mortgage was given could readily be ascertained by recurrence to the bond.

It is unnecessary to decide what the effect of the registry of a mortgage in blank would be, as evidence of presumptive notice, because there is in this case indubitable proof of actual notice of the existence of the mortgage to the agent of Lambert, the subsequent mortgagee. He saw the record in the clerk's office, and was expressly informed of the amount which the mortgage was intended to secure. Nor can the question fairly arise as to the effect of a conflict respecting the amount of the mortgage between the actual notice and the presumptive notice by the registry. If the registry be available at all as a constructive notice, it can only be for the amount of the mortgage as it really exists. If not notice of this fact, it is not notice at

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