MAY, 1808. allowed by the Chancellor in vacation from an interlocutory decree pronounced by himself at the preceding term.

President, &c. of Wm.

It had been argued at the last term,(a) on the merits, and Mary and at this term(b) it was decided by the unanimous opiCollege V. nion of the Court. Lee's Ex'rs.

March 29.

(b) Friday,

April 29.

Mr. Wickham moved for a rehearing of the cause upor (a) Tuesday, various grounds; principally, however, on account of the novelty and difficulty of the subject, it involving the doctrine of annuities, and devises in perpetuity to a corporation, which were so little practised in this country. He mentioned four cases in which the Court had granted a similar indulgence. These were Cutchin v. Wilkinson, (23d Nov. 1796;) Hunt v. Wilkinson, (15th May, 1799;) Barnet v. Darnielle, (15th Nov. 1800;) and Murray and Co. v. Garzet, Kosters and Co. (25th April, 1803.): Among other reasons for setting aside the decree, he observed that, upon looking into the record, after the decision, he had discovered that this Court had no jurisdiction of the cause, the appeal having been granted by the JUDGE in vacation from an interlocutory decree-a power which could only be exercised by the COURT in term time.(1)

On Saturday, the 21st of May, all the Judges consented to a re-hearing of the cause, but required that the preliminary question, whether the appeal had been improvidently allowed, should be first argued.

As several other causes(2) depended upon the same question, the point was argued, on Saturday, the 28th of

(1) In the case of Dawney v. Wright, ante, p. 12, Fall Vacation, 1807. the Chancellor decided, from a view of all the acts of Assembly, that he could not grant an appeal from an interlocutory decree in vacation, but only in Court.

A decree, to (2) The case of Fairfax v. Muse's Executors was argued at the same foreclose a time with that of The President and Professors and Masters of William mortgage, and Mary College v. Lee's Executors. It was an appeal allowed by the and directing the sale of JUDGE of the Superior Court of Chancery for the Staunton District, in the mort- vacation, from a decree pronounced by him, for closing the equity of gaged pre- redemption in mortgaged lands; but before any sale had been made, or mises, is an the report of the commissioners had been returned and confirmed.

interlocutory

decree.

May, by Page and Wickham, in support of the motion for MAY, 1808. dismissing the appeal; and by the Attorney-General, Warden and Wirt, in opposition to it.

In favour of dismissing the appeal, the following acts were relied on: Rev. Code, vol. 1. c. 63. p. 62. sect. 14. which gives jurisdiction to the Court of Appeals in cases of final decrees or judgments of the High Court of Chancery, General Court, or District Courts. Ibid. c. 167. sect. 2. p. 318. which allows an appeal from any decree or final order of the High Court of Chancery to the Court of Appeals, in the same manner, and under the like regulations, as appeals were thereby allowed from decrees or final orders of the County and Corporation Courts to the High Court of Chancery. Ibid. c. 64. p. 68. sect. 59. by which power is granted to a Judge of the Court of Appeals, or the Judge of the High Court of Chancery, in vacation, next after the term when a decree shall have been pronounced, to allow, upon petition, an appeal from such decree, where it shall appear to such Judge that the failure to take an appeal at the time of pronouncing the decree, did not arise from any culpable neglect in the petitioner.

The two first mentioned acts applied to final decrees, in express terms; and the last, though silent on that subject, it was contended, must necessarily have relation to final decrees, because, at that day, there was no law authorising

President, &c. of Wm. and Mary College

V.

Lee's Ex'rs.

Warden submitted to the Court, whether this was not a final decree, inasmuch as the principle had been finally settled, the land would be sold by commissioners under it, and the mortgagor (the appellant) would be turned out of possession.

But it was answered by Page, that, in the case of M'Call v. Peachey, 1 Call, 55. there was equally a final decree, the principle having been settled, but it was nevertheless decided to have been interlocutory only. In short, that all decrees were interlocutory until the parties were com pletely out of Court.

By the whole Court, (absent Judge LYONS,) this appeal was dismissed, as having been improvidently allowed from an interlocutory de

oree.

President,

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MAY, 1808. appeals from interlocutory decrees. It had indeed been the practice of the High Court of Chancery to allow ap&c. of Wm. peals from such decrees, but in the cases of Grymes v. and Mary Pendleton, (a) and M'Call v. Peachey,(b) in 1797, it was decided, that the law gave no such power; and, in the latter case, it was settled, that even consent would not give this Court jurisdiction. But at the next session of the Legislature, in the same year, an act passed giving power to the High Court of Chancery, in its discretion, to grant an appeal from an interlocutory decree, under certain (c) See Rev. circumstances.(c) Code, vol. 1.

(a) 1 Call,

54.

(6) Ib. 55.

c. 223. p.

375.

(d) Ib. c. 118. p. 233. s. 8.

(e) Ib. c. 64.

p. 64. s. 9.

It may be assumed as a general principle, that a Court can perform no judicial act except in session, and that a Judge can exercise no power in vacation, unless it be specifically given. Whenever the Legislature have intended that they should exercise such power, it has always been clearly expressed. There are several instances in which a Judge may perform certain acts in vacation; as, 1. In relation to writs of habeas corpus.(d) 2., Writs of ne exeat and certiorari.(e) 3. Appeals from decrees of County and Corporation Courts, and writs of supersedeas to stop the execution thereof.(ƒ) 4. Injunctions.(g) 5. Bills of review, and appeals from the High Court of Chancery to the Court of Appeals.(h) 6. Executions on interlocutory decrees, and discharging writs of ne exeat.(i) 7. Directing accounts. p. 68. By the second section(?) of the last mentioned act, no (i) Ib. c. 223. appeal can be granted in any cause in Chancery till a final () Ib. vol. 2. decree, unless where the Court in which such cause may c. 103. s. 1. be depending, shall think it necessary to prevent a change (1) Ib. p. 129. of property under an interlocutory decree. It is sufficient

and p. 67. s.

50.

(f) Ib. s. 16. and p. 65. s. 18.

(g) Ib. p. 67.

5. 50. (b) Ib.

s. 59, 60.

p. 375. s. 3, 4.

p. 128.

to say, that no law can be found authorising this appeal in vacation. But there is a good reason for the distinction in allowing appeals from interlocutory and final decrees." An application for an appeal from an interlocutory decree is to the discretion of the Court; from a final decree, it is a matter of right. If it be made during the Court, the counsel on both sides are attending, and the motion may be contro

verted. But when the application is to the Judge, at his MAY, 1808. chambers, the other party is deprived of this benefit.

President, &c. of Wm. and Mary College

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Lee's Ex'rs.

(a) See 6

Bac. Abr. by

"PARLIA

In opposition to the motion for dismissing the appeal, it was said, that all the acts upon this subject should be considered as constituting but one law; and it being a remedial statute, ought to have a liberal construction, not according to the words, but the intention of the Legislature.(a) The act of the 23d of January, 1798,(b) allows appeals Gwil. 389. from interlocutory decrees. It was passed after the Court tit. "STATUTE," let. of Chancery had been in operation for a series of years, (1.) div. 8. 5 and had exercised the right of granting appeals. This was Rose, 249. Com Dig. by not intended to give the right of appeal in the first in- 251. tit. stance, but to enlarge the sphere of the Court's authority. MENT." (R. It is intituled, “An act enlarging the right of appeals;" (b) See Rev. 10.) (R. 13.) and did not prescribe a new mode, but extended the right Code, vol. 1. to a new class of cases. The mode then existing, under c. 223. p. 375. the act of 1792,(c) was to apply to the Judge either in (c) Ib. c. 64. p. 68. s. 59. Court or in vacation, and the same practice has existed ever since. Is there not strong reason to believe, that, when the Legislature merely extended the right of appeals to a new class of cases, they meant that it should be exercised as before? And is it not presumable that the Chancellors, who have acted upon the law of 1798, and have been in the constant habit of allowing appeals in vacation from interlocutory decrees, are the best judges of the law relating to the practice of their own Courts?

No reason can be assigned why the Judge is not as competent to grant an appeal at his chambers, as in Court. He has to act upon the papers in both cases; and it is as important to allow him the exercise of the power in the one case as the other. Unless it can be supposed that the Judge is more wise during term time than in vacation, there is no ground for the distinction contended for.

With respect to the word COURT, used in the law, it must be observed, that a Court of Chancery differs from all others. A Court of Common Law is never a COURT but 4 B

VOL. II.

President, &c. of Wm. and Mary

MAY, 1808. in term time; but a Court of Chancery, as to most purposes, is always open. When, therefore, the Legislature were speaking of a tribunal which was equally a Court in term time and in vacation for a variety of purposes, among others for granting appeals by a pre-existing law, they used appropriate language in the term Court, which embraces. the Judge in both situations.

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(a) Rev. Code, vol. 1. c. 297. p. 427. s. 7.

The act of the 23d of January, 1802,(a) for dividing the High Court of Chancery into districts, is sufficiently extensive in its phraseology to allow appeals either from interlocutory or final decrees, in term time or vacation. Besides giving the Judges all the powers exercised by the Judge of the High Court of Chancery, it authorises them to allow appeals general and special, either in Court or vacation. A general appeal is where the whole matter is decided; a special appeal is where it is taken from an interlocutory decree.

In reply it was said, that the intention of the Legislature is only to be gathered from the words of the statute, where they are plain; but if they be doubtful, the rules of interpretation mentioned on the other side are to be applied. In this case there is no ambiguity. The simple question is whether the term Court meant the Judge.

There are now three orders of appeals: 1st. One of right, to be taken in Court from a final decree; 2dly. When a party has not taken an appeal from a final decree at the time of pronouncing it, bút may apply for it, by petition, to a Judge of the Court of Appeals, or the Chancellor within a certain time after the decree shall have been pronounced; and 3dly. An appeal from an interlocutory decree to be allowed or not at the discretion of the Court of Chancery. This involves the question, whether the Judge be the Court. If the Judge should go to his estate in the country, would the Court of Chancery be there? If he should only take a ride into the country, would it be contended that he carried the Court with him? Are his pro