
    COURT OF APPEALS,
    MARCH TERM, 1849.
    Sheldon and Sheldon vs. Barnard and Barnard.
    By the tth section of the supplemental code, semrity, as well as notice of the re-hearing must be given within ten days after receiving notice of the order to be reheard: and there must be security in all cases; whether a stay is desired or not.
    It is not necessary now, first to obtain an order a re-hearing. The notice of re-hearing may be given in the first instance.
    A bill in chancery was filed in 1846, and the cause was brought to a hearing on pleadings and proofs at a special term of the Supreme Court -held in August last, when the bill was dismissed. The complainants gave notice of a motion to the general term for a re-hearing. (Stat. 1847, p. 325, § 20,) but did not give any security until after more than ten days had elapsed from the time of receiving notice of the decree dismissing the bill. (Supp. code, § 7.) The motion for a re-hearing was denied by the general term, on the ground that security had not been given in proper time. From the order to the general term, the complainants appealed to this court. There were many other facts set forth .in the papers, which need not be stated for the purpose of understanding the points decided by the court.
    O. Allen, for the Respondents, moved to dismiss the appeal.
    E. J. Sherman, for the Complainants.
    
   The Court said there was great difficulty in ascertaining the true construction of the 7th section of the supplemental code; but a majority of the judges had arrived at the following conclusions:

1. Security as well as notice of the re-hearing, must be given within ten days after receiving notice of the order or decree to le reheard: and there must be gecurity in all cases.

2. If no stay of proceedings is asked, it will be sufficient to give such an undertaking as is required by the 283d section of the code. But if a stay of proceedings is desired, the undertaking must conform to some of the following sections, according to the nature of the order or decree to be reheard. (§§ 284 to 287, inclusive.)

3. Instead of the former practice of first giving notice and obtaining an order for a re-hearing, and then giving notice of the re-hearing, the party may now give notice of a re-hearing in the first instance. In this way notice of the re-hearing and the security may be given within the ten days allowed by the statute. (Supp. code, § 7, 8.)

Some of the Judges thought that no security was required, except for the purpose of staying proceedings: and 2d, if any security is necessary, it must be such in all cases as would be sufficient to stay proceedings on the order or decree to be reheard. But a majority of the judges approved of the decision of the Supreme Court, and, therefore, dismissed the appeal.  