
    William T. Spann & Tyre Jennings, v. Tyre J. Spann.
    Decretal orders, when they may be suspended. [*153]
    Although a Chancellor has no authority to set aside a previous order of Court, final in its nature, he may, either in the Court or at chambers, suspend its execution, on the ground of subsequent matter that would render-its execution oppressive or iniquitous. [*156]
    Sumter.—
    This bill was filed for an account by the plaintiffs, as late copartners against the third partner, and for the appointment of a receiver in place of defendant, who, by the copartnership concern, was appointed agent to settle the affairs of the firm. The Court refused to substitute a receiver in place of the defendant. An account was taken, and at Feb. Term, 1833, a report was made by the Commissioner, of the several sums in which each of the copartners was individually indebted to the concern, and a statement of the demands due by the concern. The report was finally confirmed. At February Term, 1834, on motion of the plaintiffs’ solicitor, Chancellor De Saussure granted the following order, to wit: “ On motion it is ordered that each of the copartners in this case do pay up into the hands of the Commissioner the amounts reported to be due by each of them respectively. And that the Commissioner do apply the amounts when received, first, to the payment of the costs of this suit, and secondly, to the payment of the debts due by the copartnership as reported by him; and that the Commissioner do issue executions, either against the persons or property of the said copartners, to compel the payment of the amounts due by them. Copartnership property in the hands of either of the copartners, or their agents, to be charged with the debts.
    “It is further ordered that the copartnership property in the hands of either of the copartners be produced and delivered to the Commissioner, to be by him sold for payment of the debts of the copartnership, and that he do sell the same on sale, day in April next.” *From this order there was an appeal. In conformity to the J order, attachments were lodged with the sheriff against each of the copartners (separately) for the sums as established by the report to be due by each. William T. Spann was arrested and held in custody by the sheriff. On the 5th August, 1834, his honor Chancellor De Saussure, at chambers, on the application of William T. Spann and his solicitor, suspended the attachment against said William T. Spann, and directed him to be discharged from custody by the following order, to wit:
    “William T. Spann & T. Jennings v. Tyre J. Spann. The motion before the Court is to set aside an attachment issued in this case against William T. Spann ; and also to have it referred to the Commissioner to ascertain what sums of money the said William T. Spann has paid to the debts of the copartnership, and that he be allowed credit for what he has already paid, or may hereafter pay to the debts of the copartnership, on the amount reported against him in this case. The attachment in ■question was issued by the Commissioner under a decretal order made in this case in February, 1834, at the instance of the plaintiffs, and by consent of parties. The order directed that each of the copartners in this case do pay up into the hands of the Commissioner the amounts reported to be due by each of them respectively, and that the Commissioner do apply the amounts when received — first, to the payment of the debts due by the copartnership as reported by him ; that the Commissioner do issue execution, either against the persons or property of the said copartners, to compel the payment of the amount due by their copartnership property, in the hands of either of the copartners or their agents, to be charged with the debts; and that the copartnership property in the hands of either of the copartners be produced and delivered to the Commissionex-, to be by him sold for payment of debts of the copartnership, and that he do sell the same on sale day in April then next ensuing.
    “ In pursuance of that decretal order, made at the instance of the parties themselves, the attachment was issued by the Commissionei’, and the body of William T. Spann has been taken and is now in custody. The first object of the motion is to be relieved from the attachment. It appears that the creditors of the parties in question are not parties in the suit, and did not move for the attachment; but they have judgments and executions against them individually and as copartners. Some of the copartnership debts *stood in the name of the individual co-partners, as appears by the report of the Commissioner in Feb-[*154 ruary, 1883. These executions have been enforced in part against the property of William T. Spann, and steps are taking to give them further effect against the individual property of said William T. Spann. It appears further, that Tyre J. Spann, the defendant in this suit, has left the State, and carried off great part of his property, so that his person and his property are out of the reach of the process of the Court. The motion to dissolve the attachment and to discharge the defendant, William T. Spann, from custody, is opposed on the grounds that this cannot be done at chambers, or even by a single judge, as it is, in fact, an appeal from the decree of the Circuit Court, which can be made only to the Court of Appeals. This, however, is not a correct view of the case. The motion does not seek to set aside the decree of the Court made by consent of the parties, but to discharge the defendant from the arrest, on the grounds which have arisen since the order.
    “ The creditors not being parties to the suit or the order made, cannot oppose it. By whom is it then opposed ? By the defendant, Tyre J. Spann, the copartner of the plaintiff, William T. Spann. With what grace a brother resists the enlargement of a brother from prison is not for the Court to inquire. But the inquiry is proper. What did these persons intend by consenting to a decretal order that execution might be issued against either of them, no creditors being in Court to require the same ?
    “ The bill was for the settlement of accounts between these copartners, who had lost all confidence in each other, and were willing to give a control to each other over their persons and effects, to compel a just settlement with their creditors and each other. It was a mutual agreement to operate on each of them. This mutuality is defeated by the conduct of the defendant, T. J. Spann.
    “ He has gone beyond the jurisdiction of the Court, and cannot be made liable personally to the order of the Court to which he consented. Yet he requires, and he only (for I repeat, that the creditors are not parties to this suit, or to the decretal order,) that his copartner should be held in custody whilst he evades the effect of the order on himself. This cannot be allowed. It is therefore ordered that the order for the attachment be rescinded, and the party, William T. Spann, be discharged from custody. The creditors, of course, are at liberty to act on their executions.
    *-kk-, *“This is the only part of the case before me; consequently J the only part requiring my decision. But it is proper to grant the other part of the motion. It is therefore ordered, that the Commissioner do examine and report what sums of money the said Wm. T. Spann has paid to the debts of the copartnership, and what amounts have been paid by the other copartners; and that each of them be allowed credit for what he has paid, or may hereafter pay to the debts of the copartnership, on the amount reported against him in this case.”
    
      A notice of appeal from this order, by the defendant’s solicitor, was immediately served on Wm.-T. Spann and the solicitor of the plaintiffs, on the Chancellor and Sheriff, on the grounds :
    1. That the Chancellor had no authority at chambers, to rescind an order made during Term time.
    2.. That his Honor erred in deciding that the application to discharge the party from arrest proceeded upon grounds which have arisen since the' order of February, 1834 ; as, in fact, no such grounds have so since arisen.
    3. That the fact of T. J. Spann, who was bound in a “ ne exeat bond,” having left the ‘State, did not appear on the application before the Chancellor; and if it had appeared, was no ground for the recision of the order.
    4. That by the order of February Term, 1834, made on application of Wm. T. Spann, the copartners themselves have assented that the creditors reported as such, should have the remedy of attachment for their demands, and the right to enforce it as against the copartners — the Chancellor being mistaken in the fact that the creditors have judgment and executions against the parties individually and as copartners.
    5. That by the order of Feb. 1834, the Commissioner was authorized to issue the attachment for the costs of the case.
    6. That the copartnership concern had a right, under the order of February, 1834, to the attachment for the amount due by said Wm. T. Spann, to said concern, in said case. And no conduct of either of the copartners, either before or since the order, (even if appearing,) could give the Chancellor the right at chambers to reverse the order.
    On the 21st August, 1834, Chancellor De Saussure made the *1561 additional order, on application of said Wm. T. Spann J and his solicitor, to wit:
    “ Wm. T. Spann and T. Jennings v. T. J. Spann — motion for order on the Sheriff of Sumter district, to discharge Wm. T. Spann from custody.”
    “ On motion of Mr. Mayrant, solicitor for the plaintiff, Wm. T. Spann, after hearing the argument, it is ordered that the said sheriff do forthwith discharge the said Wm. T. Spann from custody, in pursuance of the former order in this case, on the 5th August instant, notwithstanding the notice of appeal from that order, given by said Tyre J. Spann; provided, that before such discharge be made, the said Wm. T. Spann do enter into bond with good security, in the penalty of three thousand dollars, payable to the Commissioner of the Court, conditioned that he will pay to the Commissioner, or to the creditors, his share of the debts of the copartnership, as soon as the same is ascertained and reported by the Commissioner, and that this condition be regarded as a part of the said order of the 5th August, instant.”
    
      Moses, the defendant’s solicitor, in conformity to the notice served on the Chancellor and the parties, now submitted his motion to the Appeal Court to reverse the said order made by the Chancellor, on the grounds therein stated.
   Johnson, J.

The order of the 21st February, 1834, was made on the application of the plaintiffs themselves, and is in its nature. final, and not interlocutory. It awards execution against the parties, and if erroneous, was the subject of appeal. I am therefore clearly of opinion that the Chancellor had no authority to set it aside, on account of any supposed error in point of fact or law. But it is equally clear that the Courts, both of Law and Equity, or a Judge or Chancellor at chambers, have the power, and daily exercise it, of suspending the execution of even final process on account of subsequent matter which would'render the execution of it oppressive or iniquitous. Thus, when the amount due on a ft. fa. or ca. sa. had been paid to the plaintiff, and satisfaction not entered, or where there were mutual judgments which might be set off against each other, and one of the parties should be taken in execution, in these and such like cases at common law, it is the- daily practice to obtain an order at chambers, in vacation, to stay the proceedings until Term time, when the matters of dispute, *if there be any, can be determined according to the forms of law. And I would say, in L * general, that whenever subsequent occurrences would render the execution of-a judgment or order of a Court, either of Law or Equity, oppressive or unjust, the execution of it ought to be restrained; and if this should happen in vacation, it can only be done by an order at chambers.

In the application of this rule, it will be necessary to advert particularly to the circumstances of the case. The parties had been partners in trade, and the object of the bill was for an account and settlement of the concern. A report had been made by which it appeared that each of the parties were individually indebted to the concern. The debts of the concern were to be provided for out of this fund, and it was the interest of all, as well as their duty, to make this fund available as promptly as possible, and hence the application and order for final process against them individually, for the sums severally due by them. In this there was a perfect equality ; the parties and their effects were in the power of the Court, and acceptable to its process, when the order was made ; but the defendant aftewards removed with his property without the reach of the process of the Court, and by that act destroyed that equality of benefit and of burthen, which was the foundation of the order, and now asks, through his solicitor, that it shall be enforced against the plaintiffs. This will not be tolerated.

It is said that creditors are interested in the execution of this order They are not parties to the bill, and cannot be heard. — If there be creditors, the Courts of Justice are open to them, and will afford relief when they apply for it. There is certainly nothing in the order itself, nor in the proceedings, which shows that it was made at the instance of the creditors, or for their security, nor is it pretended that the arrest of Wm. T. Spann was made at their instance. <■

The claims of the officers of the Court stand precisely upon the footing of the claims of the creditors ; the object of the order, as before observed, was intended solely for the benefit and security of the parties themselves, and not for the officers of Court, and must be governed by the same rule. The payment of the costs was dependent on the payment of the fund into Court; and that having been defeated, the payment of costs must be postponed until the final determination of the case, or until some substantive order shall be made for their payment.

*1581 *UP°n ^ie whole, we think the Chancellor has put the case J upon the true grounds, and concur with him in opinion.

Motion dismissed.  