
    H. R. W. Hill vs. W. C. Richards.
    A petition in many respects very nearly resembles a motion, and there seems to be no precise or positive boundaries between them. But petitions are usually resorted to, when a fuller statement is required than can he, conveniently contained in a notice of a motion; yet either the one or the other is proper only, when a cause is pending ; or in a matter over which the court of chancery has jurisdiction, under some special authority created by statute, and in which the statute directs that the jurisdiction created, shall be exercised in a summary manner upon petition.
    After a bill in chancery is dismissed, it ceases to be in court; the jurisdiction of the court over it, is at an end ; and the chancellor cannot properly entertain any petition or motion in relation to the subject-matter of it.
    In the year 1810, H. filed his bill against P., and R. & W. for the foreclosure of a mortgage made by W.; the bill was dismissed in May, 1842, because H. failed to give security for costs, as required by the chancellor. In 1846, R. filed his petition, stating that he had been appointed receiver in the case, in December, 1840, and had acted as such until the last of 1842, or the first of 1843 ; and that R. H., (who was not a party to the bill,) had bought the interest of P. & W., and he as receiver had delivered the property to R. H., without receiving any compensation ; and he prayed for an order, allowing compensation ; notice of this petition was served on the attorney of R. H., who appeared and resisted the application ; the chancellor sustained the ap- • plication, and ordered R. H. to pay R. one thousand dollars as compensation ; subsequently R. by another petition, stated that R. H. refused to pay this sum, and the chancellor ordered, that unless he did so in ten days, the sheriff should seize and sell enough of the property to pay R. the sum; held, that these orders of the chancellor were void, for want of jurisdiction, being made after the hill was dismissed, and when there was no case in court, in which the petition could be filed.
    ON appeal from the decree of the superior court of chancery; Hon. Stephen Cocke, chancellor.
    Wm. C. Richards filed his petition stating, that in 1840 Hart filed his bill in chancery against the Planters’ Bank and others, enjoining the bank from having executed a deed of trust made by Harriet Wooster, on a farming estate of 1020 acres and thirty-five slaves, given to secure about $19,400. In the progress of the cause, Richards, under the order of the chancellor, was appointed receiver, gave bond for $20,000, took possession of the property, carried on the farming estate two years, making all necessary provision for the farm, and selling all the proceeds thereof, &c. About the end of that time, H. R. W. Hill bought out both parties to the suit, and Richards delivered the property to Hill, who still had it in Hinds county. The proceeds of the farm Richards paid to the Planters’ Bank, and when he delivered the property to Hill, there was no specific agreement as to the amount of his salary. Hill expresses his willingness to pay what the court might consider a fair compensation. Notice of this petition, and of the motion for allowance of the salary, was served upon William Yerger, Esq., Hill’s attorney,- and acknowledged by him.
    Upon this petition and motion, and upon hearing the testimony at the December term, 1845, (to wit, on the 26th of March, 1846,) it was ordered that Richards be allowed $1000 for two. years’ services, as receiver in the management of the estate in controversy in this cause, to be paid out of the fund in the cause.
    At the June term. 1846, (to wit, on the 16th of June,) Richards filed another petition, stating the same facts and also the order aforesaid,” also stating service of the order on Hill, and demand of payment, and that Hill declined to pay, until compelled by process against the property; that Hill resides in Louisiana; that the slaves involved in said suit (describing them) are in Hinds county, Mississippi, and prays for execution against the slaves. On this petition a motion was made by Richards that execution be awarded. Hill appeared by the same counsel, and resisted the motion, and the court decreed as follows: “ It appearing on proof, to the satisfaction of the court, (here reciting the facts as stated,) and that said salary of $1000 is justly due Richards, as a part of the costs of the suit, it is therefore ordered that, unless in ten days from service of the order, the said Hill pay said salary, an execution should issue to sell so many of the slaves as would pay the salary.”
    From this decree an appeal was taken to this court; and the appeal bond was conditioned accordingly.
    
      W. Yerger, for appellant,
    Argued, that the whole proceedings before the chancellor were irregular and void. No case was pending before him; no parties in court; Hill not a party to the original suit; brought into court by a mere petition, and notice to his attorney at law ; no notice to Hill whatever. The suit had been dismissed for four years, when the petition was filed; there was clearly no case in court to justify the action of the chancellor, or uphold the petition.
    
      D. Shelton, for appellee.
    1. Upon this appeal, the court cannot review the order made at the December term, 1845, (to wit, on the 26th of March, 1846;) it can only review that mentioned in the appeal bond, to wit, that made at the June term, 1846.
    
      Because it may be that, upon adjudication, the court would affirm the order made in March, and reverse that made in June. If so, Richards could maintain no action on the appeal bond, either against Hill or his surety, nor could he recover his costs or damages on the appeal bond. In short, the bond would afford no remedy, no security to Richards. Now to constitute an appeal from any judgment or order of any court, the appellant must give bond, which (if the order or judgment shall be affirmed) will afford a remedy, and be a security to the appellee for the the costs, debt or damages (as the case may be), and an appeal, although granted, can have no effective operation until such bond is given, that being a substantive part of the appeal. 1 How. R. 269; 3 lb. 75.
    2. There is no error in the order made in June, 1846.
    That directs an execution to enforce an order made at a former term, directing Hill to pay the salary out of the fund involved in the suit, and bought by Hill from both parties, which order Hill refused to obey. If Hill had resided in Mississippi he would not only have been liable to execution, but also to an attachment for not paying the salary out of that fund. 2 Barb. Ch. Pr. 271. But Hill being a non-resident, the remedy by attachment was impracticable, but the very fund out of which, under the order made in March, Hill was to pay the salary, was within the jurisdiction of the court. Certainly, if payment out of that fund could have been coerced by attaching Hill, it could with greater propriety be coerced, by seizing the necessary amount of the fund, Hill being out of the jurisdiction of the court. That was the only means by which the court could enforce its own order, made at a former term. It was more consistent with the character of our laws, which facilitate the seizure of property rather than the person. It went more immediately to the object of the proceedings, by directly subjecting the fund liable, instead of reaching it by coercive means against Hill’s person, and it was the mode of proceeding most usual, even where the party is within the jurisdiction of the court. 2 Barb. Ch. Pr. 350.
    3. But to consolidate these two orders, and argue them as a single one brought up on appeal.
    
      Hill, though not a party to the original suit, bought out both parties pending the litigation, and received the property from the hands of the receiver in the cause.
    Between Hill and both parties there was direct privity of contract, and whatever charges were on the property, by reason of the suit, and bound the parties, or either of them, equally bound Hill after his purchase; among these were the costs of the suit, the salary in question being a part thereof. It will scarcely be denied that these costs (the salary included) were payable out of the fund, and that at the time the bill was dismissed after Hill’s purchase, the court would, upon mere motion, have ordered to be so paid.
    And now the question is, could not the «court, upon petition afterwards, but while the property was still in the hands of such purchaser, compel him to pay such costs, or any part thereof, not paid by him ? or must that party, to whom such portions of the costs are due, resort to a separate and distinct suit 1
    
    As a • question of right, Richards was clearly entitled to his salary out of this fund. 2 Barb. Ch. Pr. 328 ; 3 Bro. C. C. 171; 1 Fes. Jr. 246. But could he procure it by petition?
    4. In cases like the present, there is no precise line of distinction between those in which a party may be relieved upon petition, and those in which he must apply more formally by bill, but in such cases that question is at the sound discretion of the chancellor; where, however, the petition is on some collateral matter, which has grown out of a suit in court, he may be relieved on petition. 1 Barb. Ch. Pr. 578, 579; 1 Smith, Ch. Pr. 70, 71, and note; 10 R. 508, 520, 521; 13 Yes. 395; 3 Dan. 244. And upon such collateral matters, if the right is clear, and the petitioner entitled to the redress he seeks, a petition is the proper form for obtaining it. 13 Yes. 395.
    In such cases, the remedy by petition is not confined to the parties to the cause. 1 Barb. Ch. Pr. 579. And it may be made available after final hearing, provided that the collateral matters grew out of, or was incident to, the cause while it was pending.
    (Thus in Codwise v. Gelston, 10 J. R. 508, the final decree was made in March, 1809. In February, 1810, Geltson presented his petition; he had been a defendant, but, on his own demurrer, the bill had been dismissed as to him, and he was then no party to the suit. Ib. 511. But in disposing of a fund raised in the progress of the cause, it became Gelson’s interest, by bill or petition, to claim a priority of payment over some of the parties to the bill; he did so by petition ; the'chancellor dismissed the petition, because it should have been by bill; the supreme court (Kent, G. J. delivering the opinion,) unanimously gave the relief sought by the petition. Ib. 520, 521.
    So in Manot v. White et al, 1 Cond. Eng. Ch. R. 9, a final decree was made in June, 1818. In November, 1822, upon the petition of a third party, showing that certain title papers in the suit, filed by one of the parties, had been by the petitioner delivered to that party, upon a condition which had been broken, and praying for delivery of the deeds to the petitioner, the court ordered it accordingly.
    That these collateral matters may be done upon petition, at the discretion of the chancellor, see 8 Cow. R. 349.
    But another and important consequence grows out of this discretionary power of the chancellor. If the court, in the exercise of this discretion, entertain the petition, and, according to the prayer, order that which is in substance right, (though an appeal may be taken,) it cannot be supported on the ground that the thing was improperly done by petition, and not by bill. 13 Yes. R. 395.
   Mr. Justice Clayton

delivered the opinion of the court.

In 1840 a bill was filed in the superior court of chancery, by Abram Hart against the Planters’ Bank of Mississippi, William C. Richards, and Harriet Wooster, to obtain the foreclosure of a mortgage, executed by said Harriet. This bill was dismissed in May, 1842, on account of the failure of the complainant to give security for costs, as required by a previous order of the court.

This appears to have been regarded as a final disposition of the cause, until March, 1846, when a petition was filed by the appellee, W. C. Richards, stating that he" had been appointed receiver in the above stated case in December, 1840, and had acted as such until the last of the year 1842, or the first of 1843.

It also states, that the appellant, H. R. W. Hill, about that time, purchased the interest both of Mrs. Wooster and of the Planters’ Bank, in the mortgaged property; that Richards delivered the property to him, without receiving any compensation as receiver, and prays the court for an order allowing him compensation. A notice was given to William Yerger, that a motion would be made to the chancellor for an execution against Hill, for the salary of Richards as receiver, and Yerger, as counsel for Hill, appeared and opposed the order.

The motion was sustained by the court, and the sum of $1000 directed to be paid to him out of the fund in the cause. This order was made on the 20th of March, 1846. After-wards, on the 16th of June, 1846, another petition was filed, which states that Hill had declined to pay the allowance, and. prays for an order that unless Hill should pay the amount in ten *aays, that the sheriff should seize and sell so much of the property as would satisfy said sum. This order was made by the chancellor, and the matter brought thence by appeal to this court.

A petition, in many respects, very nearly resembles a motion, and there seems to be no precise or positive boundaries between them. But petitions are usually resorted to when a fuller statement is required than can be conveniently contained in a notice of motion. Yet either the one or the other is proper, only when a cause is pending, or in a matter over which the court of chancery has jurisdiction under some special authority created by statute, and in which the statute directs that the jurisdiction created, shall be exercised in a summary manner upon petition. 1 Smith, Ch. Pr. 70; 3 Daniel, Ch. Pr. 1801, 2076.

In this instance there is no statute creating any special jurisdiction in the court; the propriety of the proceeding must, therefore, be determined by general principles.

After the dismissal of the bill in, 1842, the original cause was no longer in court, the parties were no longer before it, and'its jurisdiction was at an end. This proceeding is not between the original parties, but between the receiver in the cause, and a •purchaser of the estate. When the receiver gave up the property, and relinquished his trust, when the suit was dismissed, and the fund withdrawn from the court, it had no power again to interpose upon petition.

The first order made by the chancellor was, that the receiver should be paid out of the fund. But there was then no fund in the court, nor any of the original parties before it. Its jurisdiction was at an end. The subsequent order to compel compliance by execution, was equally beyond its power. It could not proceed by petition after the original suit was disposed of. Whether the receiver would have been entitled to relief upon bill filed, or whether a court of law alone had cognizance of his rights, we are not now called on to decide.

The decree is reversed, and the petition dismissed.  