
    W. J. Bennett vs. Martha I. M. Bell.
    
      Re-hearing — Appeal—Decree—Penalty.
    Where a party appeals from a decree and then abandons his appeal, it is no ground for a petition for a re-hearing that the appeal was abandoned, because the Chancellor’s notes of the evidence were not forthcoming.
    The Court may suspend the execution of a decree where the party, if he were to obey it, would subject himself to a penalty; but where the apprehension of a prosecution is manifestly groundless, the Court will not suspend the execution.
    BEFORE DTJNKIN, CH., AT CHARLESTON,
    JULY, 1858.
    This bill was filed in June, 1853, to compel the defendant to remove certain obstructions from Concord street in the city of Charleston, which bounded plaintiff’s land, and which it was alleged was a public street. The cause was heard in June, 1856, before his Honor 'Chancellor Dargan, who pronounced the following decree:
    Dargan, Ch. This cause came on, and was heard on bill, answer and proofs, and it appearing that Concord street, as alleged and described in the bill, was granted to the City Council of Charleston in eighteen hundred and one (1801,) and dedicated by deed as a public street, and that the original defendant, William Bell, in his life-time, had notice of and was bound by the covenant of his grantors, Joseph and Mary W. Johnson, to and with the complainant, for a boundary of his lands on said street, and binding upon, them and their assigns, not to obstruct his free use thereof as a public street; and that the defendant, Martha I. M. Bell, the widow, and the grantee of the said William Bell, is in like manner bound.
    'And it further appearing that the said defendant, Martha I. M. Bell, has, in violation of her said obligation, obstructed and blocked up said street between its intersection of Hasell street 'on the south, and its northern extremity, beiiig the northern line formerly of Philip Gadsden’s land.
    In consideration whereof, it is now here adjudged, ordered and decreed, by this Court, that the said defendant, Martha I. M. Bell, do forthwith cause to be removed her fences, buildings, and every obstacle on or obstructing said street, so as to permit and suffer the complainant, and all other persons, to use the same as a public street, and especially to all free and unobstructed ingress and egress to and from his lands bounded thereon. And that a writ of injunction, directed to the said defendant, Martha I. M. Bell, do issue under the seal of this Court, directing and commanding her and her agents, servants, bailiffs, and tenants, and all persons acting under her license or authority, to remove said fences, buildings, and obstructions, and forever hereafter to abstain from further obstructing said street.
    ' And it is further ordered, that the costs of this suit be paid by the defendant, the executor of William Bell, out of the estate of his testator, William Bell.
    From this decree the defendant gave notice of appeal, on ten grounds; but át the sittings of the Court of Appeals, in January, 1857, she abandoned her appeal, and the docket was so marked. Briefs had been prepared and the decree and grounds of appeal printed for the hearing of the cause on appeal.
    In March, 1858, the plaintiff obtained a writ of injunction, commanding the defendant to comply with the decree by removing the obstructions.
    On the 23d of June, 1858, the defendant filed her petition for a re-hearing, in which she stated as ground for re-hearing that, “your petitioner is informed that her solicitors,as appellant’s counsel, were never furnished with a full report of the case by the Chancellor, and that at the call of the case on the Appeal Docket, in consequence of the loss of the Chancellor’s 
      notes of evidence in the trial below,'her counsel found it impossible to proceed in the case with justice to your petitioner and to themselves; by reason whereof,'the appeal taken has never been heard, the equities of your petitioner’s cause have never been finally adjudged, and complete justice cannot be dispensed without a full re-hearing of the bills, answer, and proofs.”
    On the 29th of June, the petition was heard by his Honor Chancellor Dunkin, and on the same day his Honor granted an order that the defendant shew cause why she should not be attached for a contempt in that she has disregarded and disobeyed the mandate of the Court and the writ served upon her. '
    The defendant shewed cause, and on the 9th of July his Honor ordered, that unless the obstructions be removed, as required by the decree, within three months, the rule be made absolute.
    The defendant appealed from the ruling of his Honor on the petition for a re-hearing, on the grounds:
    1. Because the petition set forth good ground of equity.'
    2. Because his Honor erred in ruling that the entry of “appeal abandoned” on the appeal docket, necessarily concluded the cause and estopped the appellant from pursuing her equity for a re-heariug in the Circuit Court.
    
    3. That if the appellant’s counsel were at all in error, it was in docketing the cause without a complete report of the points and evidence taken in the trial below, and that such error was fully corrected by their abandoning the appeal, and by resorting to the Circuit Court on petition for re-hearing.
    4. That the manner in which the decree was drawn was calculated to embarrass the counsel for appellant, and was not in accordance with the requisitions of law.
    5. Because his Honor erred in ruling that a motion for re-hearing was the proper motion for the Court of Appeals, inasmuch as the ground of the motion, to wit: the incom. pleteness of the Chancellor’s report of the cause and the consequent embarrassment of counsel, was matter arising after the decree was filed, and made a new case for equity.
    6. That there had been no such default on the part of appellant-as'should deprive her of her equity for a rehearing at any time before thV final enforcement of the decree.
    The defendant also' appealed from the decision of his Honor-on-the ietfirn to the rule to show cause, on the grounds set'forth in her answer, to said rule, and also on the following grounds: -- '"'-" 7?. ¿-1 y
    1. Because hig,« Honor erred in ruling that the positions assumed in the return were all included in the grounds of appeal from Chancellor Dargan’s decree.
    
      2. Because an acquiescence on the part of defendant in the decree as declaratory of her land being bound by the covenant of dedication of Concord street, was perfectly consistent with a subsequent resistance, on her part, to the enforcement of the decree by process of contempt.
    Barker, for appellant.
    
      Campbell, contra.
   The opinion of the Court was delivered by

Dunkin, Ch.

The original decree in this cause was made by Chancellor Dargan in June, 1856. From that decree an appeal was taken on ten distinct grounds. Upon the call of the case, at the sittings of the Appeal Court, in January, 1857, the appeal was abandoned by the solicitors of the appellant, and is so marked on the docket of the Court. Some time after the abandonment of the appeal an application was made to the City Council to pay, or contribute to pay, to the expenses of the litigation which had resulted in facilitating the opening or extension of Concord street. The correspondence which then took place, is referred to as exhibit A, of the appellant’s petition but is not printed with the brief and the Court only knows of it from the casual reading by the counsel of the appellee in the course of his argument from one of the newspapers of the city. It would seem from that correspondence that, while the Council recognized the services rendered to the public in the proceedin^^ffi^^^^M^d further action in consequence of a coh^^Nuation the appellant’s counsel which induced the^belief of ^qu^-pplthat the object had not yet been consumiiill^V fcliláb'ujJoáiL in March, 1858, proceedings were takem by the j^i^tim] to enforce the decree of Chancellor Darg^m ^-suTO'g'out arnrit of injunction, &c. from the register. Tliraiasjsa^^SSt to be urged when, on 23d June, 1858, a petition was filed praying for a rehearing of the original cause. The Chancellor declined to grant the prayer of the petition, and this constitutes the first question to be determined.

The general practice on this subject is stated in Carr vs. Green, Rich. Eq. Cases, 405, and Downs vs. Simpson, 5 Rich. Eq. 421. But the special ground, on which the petitioner relies, is that the original appeal was abandoned because the Chancellor’s notes of evidence were not forthcoming. This circumstance may, or may not, have furnished a very good reason for the Court of Appeals at that time to have postponed the hearing, or to have given the appellants such aid as may have seemed proper, but it constitutes no ground whatever for rehearing an appeal which had been formally abandoned by the parties. As well might an unsuccessful litigant in the Law Court of Appeals, after his appeal had been abandoned and so entered on the record, move, a twelve month after-wards, to have his cause reinstated on the docket and a new trial ordered because no report, or an imperfect report, bad been made by the presiding Judge who originally heard the cause.

But, out of the ten grounds of appeal taken, six might very well have been heard and determined upon the pleadings alone, and, in reference to the other grounds, the greater par^ of the evidence (as appears from the argument here) was manifestly documentary or from public records which were always accessible to the parties, and which it was their duty, and not that of the presiding Chancellor, to have exhibited before the appellate tribunal. The principal matter pressed in the argument is (not as to the want of evidence of the original dedication by the proprietors, which is altogether documentary and which does not appear to be seriously questioned but) as to the acceptance on the part of the public, represented by the City Council. The Court is, of course, unable to determine what evidence may have satisfied the mind of the Chancellor upon this point, nor is it at this time and on this application a proper subject of inquiry for the reasons already stated. This Court is of opinion that the petition presented no sufficient grounds for a rehearing, and was properly dismissed.

But it was submitted that although the Court would, in no manner, disparage the judgment pronounced by Chancellor Dargan in June, 1856, yet if, in enforcing the orders following thereon, insurmountable obstacles were presented, or the defendant, in yielding obedience to those orders, would violate the laws of the land, and encounter the perils of a prosecution, this Court had the authority, and should exercise it, of suspending the execution of those orders. Undoubtedly cases may arise, and have existed, in which the Court has suspended the execution of its own decrees, or a succeeding Chancellor has suspended the execution of an order made by his predecessor. It is a power to be exercised with great delicacy, but the authority properly exists, and whether justifiable or not must depend on the circumstances, or exigency, of the particular case. Of the grounds assumed for such interference in this case the Court deems it necessary only to notice particularly the objection that by the Act of Assembly 21st Dec., 1799, (7 Stat. 115) a penalty of forty dollars per week is imposed for throwing open, to the use of the public, enclosed spaces within the corporate limits of Charleston, without the consent of the City Council, and it is urged that to obey the mandate of the Court in this case would subject the defendant to a prosecution under this Act.

The Act of 1799 was avowedly passed for the purpose of aiding the City Council of Charleston in the enforcement of their police regulations. The preamble recites the grievance to be prevented, and that “the corporation of Charleston can impose no penalty which would be sufficient to prevent persons from acting in opposition to the regulations” therein prescribed. It is then declared, su bstantially, that, before any street, lane, court or alley shall be opened, a plan shall be submitted and approved by the City Council, &c. — and provides a penalty of forty dollars for every week the street shall remain open contrary to, or in violation of the provisions of the Act. Concord street up to Hasell street has long since been established, and has been lighted, paved, &c., under the authority and at the expense of the corporation, &c. The dedication of the premises now in controversy being a continuation of Concord street beyond Hasell street was made in 1,801, and the plan of the proposed street was placed upon the public records of the country. Without reference to any previous proceedings, on the part of the city authorities, it is matter of record that, prior to the filing of this bill in June, 1853, the City Council had caused a prosecution to be instituted against the defendants’ testator for a nuisance in obstructing this part of Concord street as a public thoroughfare. The Court has no official information as to the cause of the failure of the City Council in that prosecution. But when those proceedings are considered in connexion with the correspondence subsequent to the decree of June, 1856, and which was put in evidence by the petitioner, the Court is satisfied that any apprehensions of the defendant of a prosecution under the Act of 1799, either at the instance of the City Council, or of any one else, may be safely dismissed, and that the order of Chancellor Dargan for removing the obstructions, &c., may be obeyed by the defendant without peril of the penalties imposed by that Act.

It is ordered and decreed that the appeal be dismissed.

Johnston and Wardlaw, CC., concurred.

Appeal dismissed.  