
    Thompson vs. M‘Kim, et al.
    
    Appeal from the court of chancery. The object of the fajll in this case,, which vyas filed by the appellees against yke appellant and John Bell, in the court of chancery, on ihe 22d of September 1812, was, among other tilings, to recover from the appellant the sum of 540,000, which the bill alleged had been deposited by one Marcus Ileyland in the hands of the appellant, to and for the use and benefit of the appellees. The material facts stated in the bill are, thai Ileyland, in the year 1810, having purchased a large quantity of dry goods in England, amounting to about 5Cr,000, drew several bills of exchange in favour of the persons of whom the goods were purchased, on the house of William fy John Bell, 8c Co, of London. The bills were regularly accepted. Before they became due, Will'mn Bell, one of the house of IPMliam 8c John Bell, <f Co. died, in consequence of which the affairs of the bouse became deranged, and the aforesaid bills were not paid at maturity. ÁÍ the instance of John Bell, (the other defendant,) and one of the firm, and residing at that time in the United Stales, ‘Ileyland placed in the appellant’s hands about 5510,000, for the purpose of securing the payment of the said bills, or if the same should be paid by the house of W. <§• J. Bell %■ Co. to indemnify them for such payment, they having accepted the bills for the aC‘‘ eommodatiou of Ileyland. W. $* J. Bell 8c Co. afterwards became insolvent, the bills remaining unpaid in the hands of the complainants. The deposit in the appellant’s hands by Ileyland, was made under a contract between himself and the appellant. It is unnecessary, however, to set out this contract here, as it is sufficiently stated both in the chancellor’s opinion, and in the opinion of this court. There was a subsequent contract between the same parties, which also appears sufficiently in those opinions. The answer of the appellant admits these contracts, and the deposit in his hands under them, by Ileyland. It avers also, that before and at the time of the said deposit, the house of IV. $• J. Bell 4- Co. were indebted to the appellant in a large amount on account of protested bills of exchange, drawn by their house in the United States, on the house in London, and endorsed by the appellant, and for other bills endorsed by them to the appellant. It also avers, that the deposit by Ileyland was made with the sole view of securing the appellant from loss on account of Ills endorsement, as before stated, of the bills of W. 8y J. Bell 8c Co. drawn by the house here on the house in London. It also states,.that the design and true construction of the second contract between Heyland and the appellant, which is before referred to,’ was that Heyland should only be indemnified to the amount of the difference between the said deposit, and the debt that might be due from Heyland to W. Sf J. Bell Sf Co. on account of the bills drawn by him, .as already stated, oii that house, and that it was not intended by this last contract to cancel the first one between the appellant and Heyland. The answer further states, that 'W. Sf J. Bell fy Go. on the 8th of May 1811, ha.d . actually paid, on account of Heyland’s. bills oil them, the sum of J5511 4 10 st’gl That they afterwards paid a further sum on the same account, and that the holders of the bills were now engaged in collecting, from. the. surviving partner of the house of W. Sf J. Bell Sf Col other and further sums, and that the appellant had reason to believe that they will collect a large ámount. Tt is unnecessary to notice the answer of John Bell, the other defendant!, At December term 1822, an application was made by the complainants for an order on the appellant to bring the amount deposited ■ivith him. by Heyland into court, to be distributed amongst the several person^' entitled.' On this application the chancellor, at the same term, passed the order prayed for, unless cause to the contrary was shown on or before the 15th of the ensuing January. At March term 1823, an order was passed authorising depositions to? be taken by either of the parties, before a magistrate, to be Used at the hearing Of the order for bringing in. the money. Under this ordeb sevérál depositions were taken/ and a variety of original letters from the appellant to John Bell, and from him to the appellant, were proved. This evidence sufficiently appears in the opinions of the chancellor, and of this court,, At December term 1824, the Appellant Applied by petition, -for leave to amend his answer.
    
      An a [i pen I does rot lit- from amen* practical order of the court of chancery, which is om> prumuaiory toa fhial,lK-aring, and by which the rights of the parties are not affected.
    A decretal order, pii.s-.od upon tho i-<ne in the cause m relation to the subject mutter in controversy, ami uh.»-h sntle-» the right between the partita, may be apjHuh-d from
    Whether an appeal lit-s-m any particular ease, is a question to bo decided by the appellate court alone
    Where the bid states that the ch iWidant received the money nt dispute for the use of the complainants, fiom the debtor o* the complainants, under a contract between said debrbr and the dcfimlanr, ami i he def ndant in his answer* admits the contract, but dt niis that the construction of it is, that ho was to hold the amount reeeimrunder it for the complainants, hut us»erts that it was so received fur his own u.e, and the chanciller decides that issue against tho defendant, and passe» an order direct-my him to bring the money into court, lie may appeal lVom that order.
    A writ of error is mandatory, anil leaves nothing to the discretion of the subordinate tribunal.
    Appi ais in (hi-, state ai e on ’the snive foaling with writs of error, and are equally mandatory upon the court from whose Judgments or decrees they are taken.
    Under the act of 1713, ch 4, parties ¿re eulit ed to an appeal as a matter of right. Under that act ivn appeal i» pioperly before the appellate court,where it has been demanded in the way provided for l>y such act, and a transcript of the record of the proceedings of the inferior court, under the seal of the ckvk of such court, is filed in the appellate court. -I he. provisions of the act of 1713, ch, 4, so far as relates to the manner of prosecuting appeals, have been extended to appeal» from chancery by tlie act of 1729, ch. 3.
    Appeals fromthe court of chancery to are the ehaneebor. Tl e 2d sect, of the’aci of 17l3,'c/¿ 4. dots not apply to appeals from chancery.
    . The court of chancery of ibis state is governed by the- principles of the English court of chancery, so far as the same are applicable. . ,. ’ , ,. .
    ,. , . An appeal from the court of chancery m this state dots not,/;cr ¿-^suspend proceedings on the decree appealed, from.
    Pending such an append the chancellor, if applied to for that purpose, may order the proceedings to to suspended on such terms as the peculiar circumstances of tbe'ease may he found to require, or a sp<Ti:ii <ndir to the same effi at may be passed by the appellate court
    The power ofsu pending the proceedings in chancery in Eiiglanli, pending an appeal, by the House of Lords, is not an arbimuily ussurnt d power, but incidental to that body as an appellate tribunal.
    1 ho sanu- power, m regard to decrees m chancery in this state, pending-an appeal to the court of appeals, is incidental to that court.
    The t-xisienec of such a power is necessary for the beneficial exercise of appellate .-jurisdiction..
    Win le it appear-», that if the order ov decree appealed from should be reversed by the court of appeals, tho ei/forument of such order or decree, pending the appeal* would produce irreparable injury to the appel ant, an ordu* to suspend proceedings will be passed by that court, on such terms wiU not be prejudicial to the appellee's.
    Under tice particular circumstances of this case such an order passed,
    1-orm ol the order.
    
      Bland, Chancellor, at the same term, passed the following order: The arguments of counsel on this petition to obtain añ order commanding Hugh Thompson to bring a certain sum of money into court, have been heard and duly weighed, and the proceedings in the cause have'been attentively read and considered.
    This practice of ordering money to be brought into court, is one of very late origin. Lord Eldon is reported to have said in 1804, “I remember, when the practice was Introduced of making a defendant pay in money, appearing, by his answer or examination, to be in his hands.” But it seems to have been attended with so many beneficial consequences, to have been so often resorted to, and so many of the cases have been reported, that the principles of the rule, by which the court is now governed, maybe considered as fairly and fully developed. In the investigation of the principles applicable to this petition, or motion, as indeed in relation to every other legal inquiry, we should perpetually bear in mind, that it i's the reason and spirit of cases make law; not the letter of particular precedents.
    It is held to be a fundamental axiom, that the judgment of a'court must be the conclusion of law arising from the facts presented to it. And in the application of this maxim, theié is nothing peculiar in the character of the court, or in the mode of judicial proceeding, by which it can be at all affected of varied. It is a fundamental principle applicable to all courts, and from which none are allowed to depart. The judgment of a court of law is the legal result of the facts admitted by the parties, or found by the jury; and so too, the decree of a court of chancery is the result, according to principles of equity, arising from the facts found in the bill, answer, proceedings and proofs. Such is the acknowledged foundation of all final and general judgments or decrees. But interlocutory orders and decrees, aficcting rights, must, so far as they go, have a similar basis; because, no court of judicature can arbitrarily make a partial any more than a total disposition of the rights of things or persons, without such afoundation. The judge can go no farther than to apply the rule to the case, or to pronounce the law upon the facts, either partially or wholly. It-is of the very nature of judicial power tobe so limited. It is, however, of no importance, as regards this principle, how the facts are made to appear, or in what shape they are presented to the tribunal; whether by confession; by arithmetical calculation; by necessary deduction; or by positive and direct proof. It is enough if the facts are so placed before the tribunal as to preclude all further denial of them. The court may then be called on, in cases like this, to pass an order, or, in other words, to pronounce the equity resulting from the facts. Such are the elementary principles. Let us now bring them near to the ease under consideration.
    
      In case's of this sort it is not necessary, that the pki-ty moving fór the order should show an unquestionable right to a part or to the whole of the money proposed to be cal1 led in. It is enough; that he shows an interest in the safety and final disposition of the funds. The general rule is* that the plaintiff is solely entitled to the fund, or has acquired in the whole of it such an interest, together with others, as entitles him in his own behalf, ahd the behalf of those others; to have the fund secured in court.
    'A motion* by a party interested; to order money to be brought into court, can only be predicated upon the allegation; that the cle’ar conclusion of law from the facts is* that the person proposed to be called on lias no right 'or title whatever to hold the money of which he has the possession; and, therefore, the first inquiry is, kfe’ there any facts then to be found in the cause warranting such a conclusion? And iiext* if there are; can the party be allowed at any future stage of the proceedings, to contradict or explain them away? It is not necessary to show, that the person called on is a mere naked trustee, without any legal control over the fund; it is sufficient, if it appears that he has no equitable right of title to the money he is called upon to produce: As, where an'executor admitted abalance in his hands, but alleged that an action at laW.was then depending against him, and insisted, that the fund should not hé taken out of his hands while he so remained liable tobe 'called bn — But the cohrt ordered-in the whole balance; ahd, on á recovery being had, the money was ordered to be paid the plaintiff in the fiction; find not to the executor*
    1 It is said iti the books; that orders of this kind Wefé Originally confined to bases where thb facts Were expressly admitted in the defendant’s-fins-wen It is easy to imagine, that their propriety was originally Suggested by cases of that obvious ahd Unequivocal character; but the court, having been made acquainted with their beneficial consequences, soon perceived the principle on which they were based; and in a short time threw aside the anomalous and technical notions about the necessity of- finding the facts expressly admitted in the answer. '
    In the case of Freeman and Fairlie, Which was so cogently pressed upon the attention of the: court by both parties, Lord Eldon says, “I think it fight to say, that* under all circumstances, I can take the personal estate to have been in 1/91, ¿£2000, and that I • may add the accu-. mulations to 1812; but I have not in this answer any dis°> tinct admission that he has laid out the money in East India securities, in such a way as to enable me to ascertain and order him to bring in what is the fair amount of the personal estate.” And in conclusion, the chancellor ordered the defendant to bring in the sum of J3680j whence it is clear, that he felt himself at liberty to go as far with his order, or in pronouncing the conclusion of law from the facts in the case, as those facts were then, and in that stage of the case established, and open to no contradiction or explanation in the course of the subsequent proceedings. For, although the chancellor took much pains to show that the defendant had, by his own answer, covered himself with shame, yet the order went no further than the incontrovertible facts in the case would fairly warrant, or, as the chancellor says, “under, all circumstances.” Hence, if the statements, allegations, and then situation of the cause, in relation to the motion, are of such a nature as to leave the matter open to be.affected by the proofs to be adduced at the final hearing, the.court cannot pass any interlocutory order or decree whatever oi\ the subject.
    But in this case of Freeman, and Fairlie, the facts appear to have been deduced, under all circumstances, from the answer itself. The first step taken to find facts beyond, but in the immediate precincts of the answer was, when a schedule was referred to in, the answer as containing- a correct statement; the items of which schedule, if-added up, would show the sum admitted to be due. Such a form of admission was, therefore, held to establish the facts as unequivocally as if the sum had been distinctly specified in the answer itself. This position necessarily comprehended another case going apparently one step farther, but which was in fact precisely' the same in principle; that is, where the party referred in his answer to* and produced, a s.et of bpoks of accounts, and alleged that they contained a fair, true statement of facts — if on referring them to the auditor, he reports, that they show a certain amount to be in the defendant’s hands, it will bn considered as an indirect, but sufficient admission of such fact, and the court will order the money to be brought, in, But if no distinct fact can be deduced from the answer itself, laying a foundation for such a motion, and the ease is referred to the auditor, and the party, on his examination there, makes admissions of such facts, they will be Considered as binding and conclusive as if made in the answer itself. So much then for the direct and indirect statements and. admissions of the party himself.
    There are other cases which show that the court has gone much further with the principle, and distinctly manifested a disposition to follow it out, in all its bearings. For where a controverted case, of account had been referred to the auditor to adjust, and the parties had there fully contested the matter, and. the report of 'the auditor showed a balance in the, defendant’s hands to which he was not entitled — tin such case, after the lapse of the time allowed to except to it had expired, and after it ha,d been confirmed, an order was granted to have the money brought into court, and this not on the ground of any admission of the party, for the truth might have been, that he contested every item and every point before the ■ auditor, but upon the ground that the court was presented yith facts in that stage of the cause which had been established. in a due course of judicial proceeding, which could not thereafter'be, in any manner, questioned or denied by the same party, 1
    The objects and inducements fur making an interlocutory order, or partial decision of this'kind, are to remove the fund out of ’danger, to place it in a state of the greatest security for the benefit of all concerned; and by circumscribing the field of .controversy, to accelerate the further progress of the cause, and save costs; since it is evident, the parties will spin it out while they have the advantage of'keeping the money.
    Hence it appears, that those who make this motion must show, that" they have an interest in the money proposed to be called in; and that he who hold's it in his possession has no equitable right or title, to il whatever. "And .the facts, on which these positions are to be based, must be found in the cause as it now stands, either admitted or so established as to be open to no further' controversy at any subsequent stage of the'proceedings. '
    These principles being settled, the next inquiry is, how far the court may allow 'itself to range through this case in search of those facts, which are to be thus taken as admitted or_e.stablished? The plaintiffs contend, that the answcr of a co-defendant, and cei’tain exhibits and proofs, taken in express reference to this motion, should he read and considered. On the other hand the defendant, Thompson, urges, that the very satisfactory explanations of what he calls his supplemental answer, or at least that matter Stated in his petition, filed on the 31st of January last, as the substance of a supplemental answer, which he ought to be permitted now to file, should be taken into view. All these matters must be disposed of before we can safely undertake to bring together what may be considered as the admitted or established facts hi this cause in relation to this motion..
    The answer of the defendant, John Bell, it has been. Urged, may be resorted to as belonging to the r,es gesta, to the same subject, either a§ direct evidence, or for explanation, or illustration. It is, in general true, that the answer of on'e defendant cannot be used as evidence for or against another defendant. Whatever may be the extent of the exceptions to this rule, none of them Embrace this case; for it is very clear, that Thompson has made no reference to, nor admitted any thing which John Bell has said in-his answer; nor has the truth of any one of John BelPt? allegations been put in issue, before the auditor or-otherwise, and conclusively established against Thompson. The answer of John Bell, the ca-d afeudant, cannot, therefore,'he allowed to furnish any of those facts on which the decision of the court must be founded on this motion.
    The plaintiffs have also directed the attention of the court to the'exhibits and proofs taken under the order of the tOtli of May last, in reference to this motion, and have contended, that, in eases like this, proofs of collateral facts and circumstances may be introduced. -But the authorities relied on to sustain this position, point to an Important distinction in the classification of cases of this nature. In cases between vendors and purchasers of. veal estate, the purchaser who is not in possession cannot be called upon to pay in the purchase mobey until the title is completed; nor will the mere fact of his taking possession entitle the vendor to call upon him for the payment of the purchase money into court. But if the purchaser, being in possession, exercises acts of ownership, he may be compelled to pay the purchase money into court; and the taking possession, and the acts of ownership, though not mentioned in the bill or answer, are the collateral facts which may he shown by affidavits, or by proofs taken in a planner similar to those offered upon the present occasion; but in such cases, that the purchase money is due, and the amount, are facts admitted and established; and whether it should be immediately brought in, or whether the purchaser should be indulged until final hearing, or how much short óf that, are questions which depend upon equitable circumstances not necessarily involved in the principal controversy, that never would be brought into view, but by such a motion. They are, therefore, truly and properly collateral circumstances. But in this case the'question is, whether, in the ■direct progress of a case, it has been established or admitted that a party holding money has no title to it, and is therefore liable to be called on in this way, In this class, of’cases, it is part of the principal matter in controversy; one of the circumstances of it; as much so as, in the other class, between vendor and purchaser, whether the purchase, money was really due or not; and, being necessarily involved, in the main question, the court will not stop or delay the regular progress of the cause to investigate or establish it by affidavits or proofs taken out of the regular order. The proof of possession, and acts of ownership, lay the foundation of that equity which entitles the vendor to. make the call for his money sooner than he otherwise could do; and, in that class of cases, it is said to be now quite decided, that upon motions of this sort affidavits of such collateral circumstances may be read, and that it was a practice to be encouraged, as it shortened pleading. But there is an obvious distinction between such collateral circumstances and peculiar equity, and the admission or establishment of facts, which go to show the real title to the fund proposed tq be called in. Therefore, the proofs and exhibits that have been taken under the order of the 10th of May last, must, upon the present occasion, be laid aside as altogether inadmissible,
    Having thus disposed of the proffered auxiliaries of the plaintiffs, let us now take a review of those tendered by the defendant Thompson. ■ He Insists that a certain paper he has presented as a supplemental answer ought to be considered as an amended answer, or that he ought now to be permitted to file a supplemental answer as prayed by his petition.
    
      tt is well known, that it is with great difficulty permitted to a defendant to make any alteration in his answer, even upon a mistake. And there is no instance of its having been allowed for the purpose of retracting a clear and well understood admission. It should appear due to general justice to permit the issue to be altered. The rule upon this subject is, that the defendant must move to put in a supplemental answer, and accompany the motion with an affidavit, in which he must swear, that when he püt in the answer he did not know the circumstances upon which he applies, or any other circumstances upon which he ought to have stated the fact otherwise, of that when he swore to his original answer he meant to swear iii the sense which lie now desires to be at liberty to swear to.
    The paper tendered as an amended answer ctmtes within no part of this rulé. It is silent as to the causes which occasioned him to omit mentioning the new matter, therein contained, in his original answer; nor does it, or the affidavit annexed, say any thing of his not knowing of the new circumstances therein disclosed. It, in fact, purports to be a mere additional or amended answer proposed to be put on file with the leave of the court, without any previous affidavit attempting to account for the mistakes or omissions proposed to be corrected or supplied. It must, therefore, be altogether rejected. But this defendant has now filed his petition on oath, in a formal manner, praying for leave to file a supplemental answer. This petition points out, with sufficient certainty, that which the petitioner alleges was a mistake as to the time of receiving the money first spoken of in his answer. But that part of the answer, which is thus designated as erroneous, is too indefinite and obscure to lay the foundation of such an order as this, now asked for by the present motion — Tt speaks of “considerable payments,” without specifying whether they were made in bills, or cash, or what was the amount of all or any of therm; nor does that part of the answer make any such reference to any other document by which the uncertainty might be removed.. Therefore, as regards the present motion, whether the answer is suffered to remain as it now does, or is corrected, as proposed, is of no kind of importance. •
    The chancellor deems it unnecessary now to decide, whether a supplemental answer should or should not be allowed to be filed to correct this alleged mistake in vefc--' rence to the final hearing; since the subject was not distinctly argued arid presented to the court with that view.
    The second and third class of errors and corrections, Stated and prayed for; áre of the same character; and the same, observations will apply to both. The defendant admits he knew; at the time hé answered, that all right or claim which he could; in any manner, make to the monied received from Heyland; could only be derived from the deeds which had been previously made and entered into between him and Heyland. He does not pretend to have received kny money from Heyldnd in any way except under and by virtue of those contracts; consequently, his right to hold and apply it; can only be derived from them. His answer distinctly enough states what he believed to be his rights, as well with regard to the then State of tilings, so far as they werij- kiiown to him; as with reference to all other and future occurrences; If these Contracts authorised Thompson to hold the fund; in any way, for his own use, the original answer; in which he has; by explicit reference, embodied those contracts, as a part of it, with suitable and apt words for that purpose, contains all that is substantially necessary for his defence, and, consequently, those after extensions of Thompson’s liability, and subsequent ascertainment of the amount of his claim upon the bills, spoken of in his petition, are more proper and fit subjects for proof and adjustment on the final hearing, than of a supplemental answer.; — A.supplemental answer is only intended to correct the allegations of the original answer, or to remove, from .it dangerous admissions, so as to let in proof on the hearing of the real merits of the cases In-this case all the merits are, on this motion at least, tobé derived from the contracts; and the answer covers the whole ground over which those contracts can in any way be extended; consequently, it is in all respects co-extensiVe with all the real merits of the case in every shape whatever; and, therefore, the supplemental answer prayed for cannot be allowed. '
    While ,we are in the way of removing or rejecting matters entirely extraneous from the question now under con-, sideration, it may be well to observe, that, although the letter of the 10th November from-John Bell to Heyland, may be used between the Bells and Thompson, and shows the inducement for entering into the two deeds between Hey-land and Thompson5 yét, as it cannot be allowed to control or contradict those deeds, it must, upon the present Occasion, be entirely laid aside;
    Having removed from ébóut this motion all matters which d'6 not properly belong to it, le't üs now see how the case stands in its simple and reduced form. It is' this — The trustees for all the creditors of Marcus Heyland, appoint1 ed under the insolvent laws of this state, together with sundry of his specified creditors, now move the court to order Hugh Thompson, a defendant, to bring into court the sum of eight thousand eight hundred and eighty nine pounds five shillings find four pence, sterling money of England; which he had received at various times between the 5 th March 1811 and the 13th of September following, as specified in the exhibit E referred to in their bill; Which sum of money, they charge, was received under and by virtue of the last mentioned of the two deeds entered into between Heyland and Thompson, the one dated on the 20th Of November 1810, and the other bearing date on the 8th of January 1811. To this Thompson answers and admits, that the persons named in the bill are the creditors of Hey-land as stated, and that the two deeds were made and entered into as stated; but he denies that the second was intended to cancel or supersede the first; and, after making sundry allegations about the true intent; and the proper interpretation of those contracts, and his right to hold and apply the money received under them; to his own use, he then makes a direct answer to the bill as to the money which it alleges to have been received by him as stated in the exhibit E, in these words: “Defendant did receive from Marcus Heyland the sums of money mentioned in complainant’s bill.” And further, “That at the time the money Was paid into his hands by Heyland, defendant did not expect it would be appropriated to the payment of Hey land’s creditors in England. ”
    ■ The true construction of written contracts is a matter which belongs exclusively to the chancellor; no parol proof can be admitted to explain them, unless in cases of latent ambiguity. No such ambiguity exists in the present case. Therefore, all the facts relative to Thompson’s right and title to the money which he acknowledges he has received from Heyland, are as fully before the court note as they, can be At,any future stage of the cause, or at the final hearing'. The only opening for any doubt or hesitation is, as to the true intent and meaning of those deeds! Let us; then consider them Carefully.
    By that ol the SÍOth of Nbvember 1810, it appfears; Heyland had become largely indebted to sundry persons for goods purchased of them; that to secure thfe payment of those debts, he had drawn bills on the firm of William $• John É'ell Co. which they had accepted — whó might, therefore, if they paid those bills, become- the creditors of Heyland in-place of thbse of whom life bought the goods. After which the Belts transferred and made oyer this eventual and uncertain claim of theirs upon Heyland to Thompson-, In' consideration of which heyland bound himself by this contract to pay to Thompson, such balahee as might be found to be due from him, Heyland, to the Bells', bn accpunt of these transactions', or otherwise; upon the fate of .the bills being known, and a fair statement of áccoühfs between Heyland and the Bells.
    
    This seems tb be the clear sense ahd substance of this first agreement; From which it appears, that Jhompson, ivas put into the plábfe of the Bells', and'; consequently, to the extent of their claim upon Heyland, became his creditor; and as such, hada fight to the funds which, were placed in his hands under lhat agreement. But it is doubtful, from the answer, whether Thompson ever received any thing or not under this first agreement exclusively! and even supposing he had, the áiiioüht not being specified, the court cbuld make no ordfer oh this motion respecting it.
    It appears however, that the siim Specified in the exhibit E, and which is distinctly acknowledged to have been received, came to Thompson's hands after thfe execution of the deed of the 8th of January; and coilsequfently, must-be controled and regulated according to that contract, ahd not the first deed of the 20th of November. Hence itbeComfes necessary to proceed directly to the consideration of the second agreement dated on the 8th January 1811.
    This contract, aftfef a recital nearly Word for word the same, and in sense entirely the. same as the first, proceeds to declare, that in consideration of the premises Heyland is held bound to pay to Thompson such balance as might be.found due from Heyland to the Bells, on account of ¿rose transactions, or otherwise, up to that time; that Hey-
      
      land will immediately proceed to account with and pay, to Thompson the arnounf of the aforesaid acceptances, in the same manner as if itt had been ascertained they had been duly paid by the Bells:, that on all those payments Ileyland was to be allowed the current exchange, and further, that Thompson should indemnify Ileyland to the amount paid into Thompson's hands by Heylánd, against all demands that might'be rightfully made against him on account of. those acceptances, either by tin Bells, o%by the holders of-them.
    
    By thi§ deed Ileyland does, most clearly and distinctly» give us to understand, that it was his intention to pay all those of his creditors in whose favour he had drawn bills on the Bells. For, with what other possible view could he have stipulated to account with Thompson for the whole amount of the bills, as if they had been actually paid by the Bells? And with what other understanding was the covenant entered into for an indemnity against all those creditors? It is most manifest, therefore, that Upland placed this fund in the hands of Thompson for the use of that class of his, Heyland’s creditors, the bill-holders* whoever they might be.’
    But it is alleged that Tkompson hzs a. title to at least a. share of this fund as the assignee of the Bells’, and this, it, is said, is proved by the recital in this deed, in which it ia acknowledged, that the Bells ‘ ‘had. transferred and made over all the amount due by the said Ileyland- for the goods which said house of William and John'B.ell and.Company accepted to pay on his account to Hugh Thompsonand also by the express stipulation, by which Ileyland bound himself to Thompson for such balance as might be found, due from him, Heyland, to the JMls, on account of those transactions, or otherwise, to the time of executing that, deed.
    This position may perhaps be more clearly and strongly-presented in another form, thus — Ileyland, stands indebted ta sundry persons in the sum, suppose for example, of g16000, for, the payment of which the Bells are his securities, and as such, they have paid for him g400G? and consequently ' stand in the, place of his creditors to that amount. But', this claim of the Bells, having been assigned by them to’ Thompson, he has thus circuitously become a creditor of/ Heyland to ike amount of that $4000, part of the original, debt of 816000. New, says the defendant's counsel, Thompson must be allowed to return at least one fourth of which has been placed in. his hands for the payment of the whole 816000, since he in fact, stands in the place, of the original creditors, to one fourth of that whole; amount.
    There is an imposing aspect of equity in this position* and if the court felt itself at liberty to make free with the, positive covenants of the ■ parties, there might be no diffi* culty in applying its equalizing principles to this case, but the courtis not at liberty to reject or impair the covenant of indemnity in this deed of the 6th, of January. By that covenant, Thompson is bound to., save Heyland harmless, not merely against the Bells, but against all the holders of' the acceptances,, whoever they may be, to the amount of' the funds in his- hands. In other words, he is thus constituted a trustee for the bill-holders,of the funds in bishands, to the amount of the balance remaining due and unpaid oa those acceptances; for, otherwise Heyland would not be indemnified, against all demands by the bill-holders, according to the express terms of this contract.. The expressions in-this. deed, “on account of the transactions before ahluded, to, or otherwise, to the time of executing these presents,” were intended merely to.refer to the means of .ascertaining the extent of Heyland’sX\úi\\\iy to the bill-holders, and the amount of the funds- which it was necessary should* be placed in Thompson’s hands to meet those liabilities of Heyland’s, The great leading, object of Hey-land was to provide for the. payment of his own debts due to those, bill-holders. He had nothing to do with.the transactions between Thompson and the Bells,, or with the debts due from the one to foe other of themx The. obvious inducement of Heyland, in making this provision, in. favour of his bill.-holders, was some apprehended inability of those who had thus become his security to them. Hence, whatever might have been the nature or- desiga of the assignment of fhe claim on Heyland, from the. Bells to Thompson, or. of any contract between those parties, that transfer, or contract, cannot be permitted to.’control or contradictthe positive and clear stipulations contained) in this deed of the 8th of January between Heyland and Thompson.
    In short, the clear and unequivocal objects, of this deed, were to place funds in Thompson’s hands to igeet the ei'aims of those of Heyland’s creditors, who should present themselves as the holders of his bills, as therein described; and to obtain an indemnity and discharge tor Heyland from every part of those claims; so far as those funds would go. Rut Thompson does not pretend that he stands here as a. creditor of Ileylimd in the special character of a holder of all, or any ope ff the specified acceptances; he is not, by any thing that is alleged or appears, a holder of any one of the designated bills drawn by Heyland. It might be, that Heyland looked to other resources to pay the Bells any proportion or dividends which they might pay on those acceptances; and this seems plausible. But ■whatever may have been the intention of the parties, as to any matters not comprehended in the deed, that contract in itself is clear and unequivocal. The fund in Thompson’s hands was to be applied, to. the satisfaction of the demands of certain designated bill-holders; Thompson is clearly and confessedly not one of them, he has therefore no right or title whatever to the money which Heyland had placed in his hands, for his indemnification against them.
    It is therefor^, on this twelfth day of February, in the year eighteen hundred and twenty-five, Ordered and adjudged, that Hugh Thompson bring into this court, on or before the fourteenth day of April next, the sum of thirty-? nine thousand five hundred and seven dollars and eighty-five cents, being the value, of eight thousand eight hundred and eighty-nine pounds five shillings and four pence, sterling money of England, together v/ith legal interest thereon from the first day of January in the year eighteen hundred and twelve, which sum, it appears by the admitted and incontrovertible, facts in this cause, he had received from the said Marcus Heyland, previous to the fourteenth day of September in the year eighteen hundred and eleven, for the use. of said Heyland’s creditors, as specified in the proceedings in this cause; and which the said Hugh Thompson ought, within a reasonable time thereafter, to have paid to the said creditors; Provided a copy of this order be served on the said Thompson on or before the twenty-fifth day of the present month. And it is further ordered, that the said sum of money, with interest thereon, when so brought into court, shall be deposited in the Farmers Bank of Maryland to the credit of this cause,, subject to the further order of this court
    
      From this order the appellant prayed an appeal to this court, and filed an appeal bond. Qn the prayer for an ap - peal, the following order was passed^
    Bland, Chancellor, (2d of May 1825.) In this case the defendant, Hugh Thompson, by his counsel, on the 11th of April last, moved the court to grant an appeal from its order of the 12th of February last, and thereupon filed and offered an appeal bond for the approbation of the chancellor. The motion was permittedto lay over until theplaintiffs eoqld be heard; after which their counsel appeared, ■and asked to be allowed further time to reply, in writing, to the defendant’s motion, which was granted; and, on the 28th of the last month, a written argument, on the part of the plaintiffs, in opposition to the motion, was accordingly submitted to the chancellor. The parties having been thus heard, the motion has been deliberately and maturely considered.
    The, chancellor took some pains, after a very eareful research into all the authorities within his reach, to explain the, reasons and. grounds on which he founded the order o£ the 12th of February last. The greater part of the debatable ground, occupied "n the discussion of the motion for that order, was as to its foundation, — as to the kind of admisions, or state of things which would warrant its being made. The cojjrt was, therefore, explicit upon that subject. But, whether such an order was interlocutory, or final — a “decretal order’5 or not, wan neither mentioned in argument, nor considered by the court. The investigation of the nature of the basis of such an order being a matter of much importance, was, however, mada.vvith great care; because, upon its being ascertained, whether that basis was solid and uniform, or loo^e and shifting, depended the very interesting question presented in that argument— whether such orders were likely to b® attended with good- or ill consequences; or whether they were, or were not capable of being used as instruments of oppression? And it was, on finding, that the. authorities required the most broad and solid foundation, no less clear, and strong than that of a final decree itself, that the court was perfectly convinced of their great utility in all cases where there was a proper foundation for making them, and that they were no more capable of being abused, or applied to improper purposes, than final decrees themselves.
    
      But the foundation1, or basis of an order', does hot determine its effect upon the Controversy or the parties. An admitted, or incontrovertible Mate of facts, is required as the foundation of an order tb bring money into court. As the foundation of an order to account, it must appear that ia computation is necessary relative to the .matter on which the coiert may be called on to decree ; and to lay a proper foundation for an order to pay money out of court, the party claiming it miist show a clear titlé in himself But no inference can be dedutedfrom the nature of the basis of dn order as to its true character, that is, whether it be interlocutory or final, a decretal order, or Otherwise. Such questions can only be determined by the order itself, considered, hi dll its relations and bearings úpon the parties and upon the cause.
    Whether an appeal can be allowed, as moved for, in this, «ase, most depend altogether upon, whether the order of the 12fh of February last is or is not a “decretal order,” within the true intent and meaning of the act of 1818, eh. 193, s- 1. The English authorities explain, with tolerable accuracy, the difference between interlocutory and final decrees in chancery; but the phrase, “decretal order,” seems to be variously applied, and to have no settled or distinct meaning or application. The term “order” is almost always used in speaking of those general or special directions by which all suits in chancéty are governed, controled, or facilitated throughout, or in {he course of their progress from beginning to end; and, the term “decree” is most generally applied to the decisions of the court upon some or all of the rights of the litigating parties. Hence it would seem, that a “decretal order” can only be such an order as finally determines some right between the parties. But we have a satisfactory and conclusive authority of our Own state upon this question — The court Of appeals, in the case of Snowden vs. Dorsey, say, “that an appeal will not lie from a mere interlocutory order by which nothing is finally settled between the parties;” and “which was only preparatory to a final decree, and was liable to be reviewed at pleasure” — or, “where nothing is done conclusive upon the chancellor, but the order remains open, subject to his final disposition, and may be rescinded on motion.5' Let the order of the 12th of February last be tested by this decision of the court of appeals, and every difficulty must be at once removed; it is, upon the fate of it; merely preparatory to a final decreé; nothing is doné conclusive upon the chancellor; The order dire'fcts, that the money; “when Kb brought intb court,- shall be deposited in the Farmers Dank of Maryland to the ctédit of this cause, subject to the further ordét of this court;” The place of the deposit <5f the money is ordered tb be Changed. It is to be made more secure for the benefit of all concerned, subject to be dispbSed,of by ariy" futuré Order, of by the final decree; its süch proportions and. in such manner ás the right and title of tlie parties shall require.- This order of the' 12th of February last, is not then, according tb this opinion of the court of appeals, a “decretal order” — And the construction, thus given by that Court, to the phrase - “decretal order,” in the act of 1818, accords with that which has been always heretofore given to it by this courts
    The practice of requiring and giving bond, oh an appeal from a decree of the court of chancery, was very carefully inquired into' and considered, by the chancellor, in the case of Ringgold vs. Ringgold; and, in the course of his investigations in that case, he became perfectly convinced, that there was no legislative enactment of this state relative to appeal bonds from the decrees of the court of chancery.- The act of 1729 only declares that the provisions of the act of 1713, on the subject of appeals, so far' as they relate “to the prosecution of them,” shall apply to chancery cases; and, so far as any thing may be inferred from what was done by the court of appeals in the case of Smith vs¿ Dorsey, at June term 1824,- (for the court gave no reasons for their-act,) it appears to be the opinion of that tribunal, that there is no act of assembly requiring a, bond to be given on an appeal from the court of chancery. But it would be obviously impossible, or very difficult, to apply the provisions of the act of 1713, relative to appeal bonds, on appeals from judgments at common law, to appeals from the multiform and complex decrees of the court of chancery. It has, however, been the constant practice to require bond and security on appeals from the court of chancery, where the thing decreed would be put or continued in jeopardy, or at risk. The practice upon this subject, as heretofore settled and established, the chancellor has neither the disposition nor the power to alter in any respect whatever.
    
      Í5lít if an appeal would lie from such an order as that of the 12th of February last in this case, and if the chancellor could, in no case; on an appeal, -as in England, order the money to be paid into court, to remain there pending the appeal, and if he weré bound, as has been contended, by positive legislative provisions to grant the appeal, on the parties entering into bond with approved security, then it would bé utterly futile to ask for or obtain such an order in any case whatever, even in the plainest and strongest that could be imagined, since tile party thus called on could always suspend its execution at pleasure. The order in this case calls on the party to bring the moliey into court, that the court itself may liave it placed in perfect safety for the benefit of all concerned; not that he shall merely give security for the payment of it. But if the party could appeal from such an order, and suspend its execution, by giving an appeal bond, then he could, in effect, prevent the court from going farther than barely demanding security for the payment of the money. The consequence of which would be, that such orders, if made, would operate partially and not alike upon every citizen ; Upon those most wealthy and best able to comply, they would be more cobwebs; but upon those least able to find security they would have their full and just effect; they would operate as rigid injunctions. Upon the whole, the chancellor is perfectly satisfied that an appeal cannot be allowed, and therefore,
    It is ordered, That the motion of Hugh Thompson, to grant an appeal from the order of this court, made on the 12th February last, directing him to bring a certain sum of money into court, as therein set forth, shall be and the same is hereby overruled, and rejected.
    At the present term of this court the appellant filed the following petition, together with a duly authenticated transcript of the proceedings of the court of cháncery in this case, viz.
    To the Honourable the Judges of the Court of Appeals for the Western Shore.
    The petition of Hugh Thompson, of the city of Baltimore, respectfully showeth, that a certain bill of complaint was heretofore exhibited in the court of chancery against your petitioner, and a certain John Bell, in which said bill ■M complaint a certain John MsKim, junior, and Thomas 
      
      L) Emory,/junior, &c. are named as complainants; and id which said bill of complaint it is alleged, that a large sum of money; páid by a certain Marcus Heyland to your petitioner, must be considered as deposited with him for the use of the above named complainants, excepting .from such use the above named MlKim and Emory; and in which said bill of complaint it is prayed that your petitioner may be compelled to pay the money, so received by him, to the said M’Kim nod Emory, for the use of the other parties named as complainants in the said bill of complaint. That this petitioner hath answered the said bill of complaint, and in his said answer denied that he received the said sum of money for the use of the aforesaid complainants, or any of them; and also averred that he received the said sum of money; from the said Heyland, in payment of a debt due to your petitioner from a certain mercantile house trading under the, firm of William & 'John El$1 & Go. which said denial and averment your petitioner still insists are both true.- That certain other and further proceedings were had ill the said cause; and pending the said suit, and before the proofs of this .defendant were taken, and before the said cause came to final hearing; the honourable the chancellor, by an interlocutory arid decretal order; made bn the - twelfth day of February; in ■the year eighteen hundred and twenty-five; decided that the said sum of money, paid to yOul- petitioner by the said Heyland, was paid for the use of the creditors of the said Heyland, and ordered the same to be brought into the court of chancery on the fourteenth day of April last; That your petitioner appealed from the said order to this honourable court, and immediately On making Such appeal, filed his appeal bond, with sufficient sureties; in due form, of law, and procured a transcript of the full proceedings of the court of chancery, under the hands of the register of the Said court; and' seal thereof, and also hath caused the same to be transmitted to this honourable court, to be here heard, tried and determined; and also, at the time of making such appeal, your petitioner, by his solicitor, directed and required of the aforesaid register to enter a memorandum of such demand of appeal, as well.in his court’s proceedings as in the fair records of .the proceedings of the court ot chancery. That the said appeal was., demanded in the manner herein before set forth, and the said appeal bond filed in the court of chancery before the lime limited for the payment of the money into court, by the said order of the honourable the chancellor. All of which will more fully and at large appear by the aforesaid transcript now remaining in this honourable court, to. which your petitioner, for greater, certainty, prays leave to refer. Your petitioner further states, that after the above mentioned proceedings were had, the honourable the chancellor passed another order, dated May 2d, 1825, in the following words; “It is ordered, that the. motion of Hugh Thompson to grant an appeal from the order, of this (the chance) y) court, made on the 12th February last, directing him to bring a certain sum of money into, court as herein set forth, shall be and the same is hereby overruled and rejected,” as by a copy of the said order, contained in the aforesaid transcript, will among other things appear* Your petitioner also states, that as soon as he was apprised, ©f the last mentioned order, he with all convenient speed, to wit, on May 11th, 1825, presented a petition to the honourable the chancellor, praying him to suspend all further proceedings on the aforesaid order of February 12th, until the meeting of this honourable court, and offering in the mean-time, in addition to the personal security before mentioned, to deposit in the court of chancery one hundred thousand dollars of stock of- the Bank of the United-States, now worth in the market an hundred and twenty thousand dollars; and your petitioner-, upon such securities, for the ultimate safety of the money in question, besought the chancellor to suspend ppoceedsngs on the ordee first herein, mentioned until the meeting of this honourable court, to whom your petitioner is advised it rightfully belongs to ascertain and determine the limits established by law to their jurisdiction in cases of appeal. But the honourable the chancellor .rejepted-the prayer of the said petition, by an order passed, on the 12th day of May 18.25, - as will appear by a copy, off the said, order herewith filed, marked A; and, moreover, on. the tenth day of May 1825, ordered an attachment against your petitioner, for not complying with the order, of February 12, herein before mentioned, and from which said order your petitioner had-appealed in the manner herein before set forth; and which said attachment issued accordingly, May 11, 1825, was made returnable before the meeting of this court, iliptt is 
      to say, forthwith, as by a copy of the said attachment herewith filed marked B, will appear. Forasmuch therefore as the honourable chancellor has determined to enforce the aforesaid order of Februáry Í2th, hy the actual imprisonment of- your petitioner, notwithstanding his appeal from the same, in the manner herein before stated, and pending his said, appeal, and forasmuch as the said appeal and bond, given in the manner herein before stated, operates, as’ your petitioner is advised, to suspend the jurisdiction of the court of chancery on the matter appealed from, pending the said appeal, by, virtue of the act of assembly in such case made and proH vided; and forasmuch also by the general principles and established usage of the court of chancery of this state, independent of the act ofi.assembly aforesaid, no'ord.er or decree ought to be enforced, pending an appeal from such order or decree, and forasmuch also as the principles of, equity and, justice do not in this case require that the said order- should be'enforced pending the said appeal, but on the contrary require that 'the same should bp suspended until the final, decision of the canse, for the folio wing reasons:
    1st. Because the execution of the said order will nots and cannot in any manner benefit the complaínánís’in any event of the cause, inasmuch as the money will remain a dead and unproductive fund in the'court of chancery, until' the ultimate decision of the case; and inasmuch also, as the money in controversy is already abundantly secured by the appeal- bond given by your petitioner, and he is ready and willing, and has offered, and continues to offerj to make it secure in case the ultimate decisión shall be against him, by any additional security that may be deemed adequate for that purpose.' ' ‘ ’ '' ’
    2d. Because the execution of the said order would, subject your petitioner, to needless and ruinous sacrifices on. his part, without any possible benefit or advantage to any ,of the litigating parties; and in "the event of an ultimate decision in-his.,favour, wijl. moreover fix upon him an in* equitable and certain loss of, the interest oil the large sum of money mentioned in the aforesaid order, amounting to. more than four thousand, dollars a' year, and for which he can obtain no possible "redress."
    In tender consideration ‘ whereof, and. inasmuch also as your petitioner is advised that'the said, order, of February’ 12tb is altogether erroneous, and contrary to the principies and practice of the court of chancery, may it please, the court to grant to the petitioner an order, or such other pro - cess as they may deem right, to be directed to the honourable Theodoriclc Bland, chancellor, commanding and enjoining him to stay, surcease and suspend, all further proceedings on the said order by him made on the twelfth day of February, in the year eighteen hundred and twenty-five, while the aforesaid appeal is here pending, or until the pleasure of this honourable court shall be known ip the premises. And your petitioner, as in duty bound, will pray,, and so forth. *
    Notice of this petition, and of the motion for the order» therein mentioned', was given to the counsel of the complainants below, and á day assigned by consent for the argument of the motion, when it was argued before Buchanan, Ch. J. Earle, Martin, Stephen, and Archer, J.
    
      Steuart, Taney, and Wirt, (Attorney-General of U. S.) for the motion,
    stated, that the questions arising on the petition and motion were,
    1. Whether an appeal will lie from the order of the chancellor of December term, 1824?
    2. If it will, whether such appeal,is not now regularly, before this court? ’ • .
    
      3. And if. it is, whether this court have not the power to pass the order on the chancellor, prayed for by the petition, and if the power exists, whether the case does not; áuthorisé its exercise?
    On the first question they referred to 1 Harr. Chan. 454. 1 Wooddison, 232. 1 Newl. Chan. Pr. 68, The Warden and Minor Canons of St. Pauls vs. Morris, 9 Ves. 316. Anon. 1 Ves. jr. 92. Green vs. Winter, 1 Johns. Ch. Rep. 81. Borrow vs. Rhinelander, 3 Ibid 123. Snowden et al. vs. Dorsey et al. 6 Harr. & Johns. 114. Buel vs. Street, 9 Johns. Rep. 443. Cowper’s Plead. 339. 2 Madd. Chan. 290. Bowen vs. Cross, 4 Johns. Chan. Rep. 377. 1 Harr. Chan. 191. Livery vs. Wilson, 1 Ves. & Beames, 148. Jennings vs. Merton College, 8 Ves. 79. Perry vs. Philip, 10 Ves. 33. Strange vs. Collins, 2 Ves. & Beames, 162. Warfield vs. Warfield, 5 Harr. & Johns. 459, 467. 3 Blk. Com. 56. Huguenin vs. Baseley, 15 Ves. 184. The acts of assembly of 1713, ch. 4; 1715, ch. 41; 1721, ch. 14; 1729. ch. 3; 1785, ch. 72, s. 27; and 1818, ch. 193. Green vs. Winter, 1 Johns. Chan. Rep. 81. Consequa vs. Fanning, 3 Johns. Chan. Rep. 364. S. C. Ibid, 590. Barrow vs. Rinelander, Ibid, 615. Smith vs. Smith, 4 Johns. Chan. Rep. 447. Holmes vs. Remsen, Ibid, 482. Snowden vs. Dorsey, 6 Harr. & Johns. 114.
    O.n the second, point they contended^ that if it was a cas© fit for ah appeal, the chancellor had no authority to refuse it. Though the usage is to apply for an appeal in the form ef a prayef, yet in all cases where an appeal properly lies, the party, is- entitled to it ex debito justillos. This being the case, and the record here haviiig been transmitted iii, the manner directed by the, act of, 1713, eft. 4, the cause is now-properly before this, court, They referred, to the, acts of assembly before stated.
    On the third-question, they, contended, that the right to, pass the order op the,chancellor, prayed for by the petition, was incident to the right .to entertain'the appeal. They cited Eden on Injunc. 229. Huguenin vs. Baseley, 15 Ves. 184. The Warden, &c. vs. Morris, 9 Ves. 316. Gwynn vs. Lethbridge, 14 Ves. 585. Monkhouse vs. The Corporation of Bedford, 17 Ves. 380. Way vs. Foy, 18 Ves. 452. Willan vs. Willan, 16 Ves. 88, 216. Waldo vs. Caley, Ibid, 206. Green et al. vs. Winter, 1 Johns. Chan. Rep. 77. Messonier vs. Kauman, 3 Johns. Chan. Rep. 66. Riggs vs. Murray, Ibid, 160. Culley vs. Hicklin, 2 Bro. Chan. Ca. 182. Fox vs. Mackreth, 3 Bro. Chan. Ca. 45, (& note;) and Strange vs. Harris, Ibid, 365.
    
      Emory, and Winchester, against the motion.
    In all cases_ where a.defendant in chancery admits himself to be” a meré stakeholder of a fund- in controversy, he maybe-compelled to bring it into court, there to await the final disposition of-the, case. The design of this proceeding is-to secure the persons^really- interested from the insolvency or dishonesty of such a defendant, and to take from hire; the temptation of spinning put the. controversy. Gordon vs. Rothley, 3 Ves. 571. Quarrell vs. Beckford, 14 Ves. 177. Fox vs. Mackreth, 3 Bro. Chan. Ca. 45. Blake vs. Blake, 2 Sch. & Lef. 26. Hatch vs. —, 19 Ves. 116. Freeman vs. Fairley, 3 Mer. 29. Bradshaw vs. Bradshaw, 2 Mer. 492. Lynn vs. Buck, 3 Madd. Chan. Rep. 280. It is admitted on the other side, that an order of this. description may be bad, where a defendant clearly admits liimself to be only 'a depositary by his answer. In this case the appellant admits the execution of the two contracts, stated in the bilb, between himself iuid'Heyland, and that he received- the amount in dispute in this casa under those contracts. If then the true construction of the contracts is, that he Was ,to hold the amount received under them for the use and benefit of the holders of the bills drawn by lleylani on W. fy J. Bell, & Co. he admits himself tó be a stakeholder only, as clearly as if he had expressly said so in his answer. They here went into an examination of the contracts. They then stated the questions _to be — 1. Is this a case in which an appeal lies? 2. If if is, is the appeal properly before the court, and does it, per se, suspend the proceedings below? 3. Has this court power to interfere in the manner prayed for?
    On the first question, they referred to the same acts of assembly referred to by the appellant’s counsel, and Anon. 1 Ves. jr. 93. Snowden et al. vs. Dorsey et al. 6 Harr. & Johns. 114.
    On the second, to Smith vs. Dorsey, (ante 261.)
    On the third, to Briscoe et al. vs. Ward, 1 Harr. & Johns. 165. 3 Blk. Com. 42, 30. 1 Wooddison’s Lect. 232. 1 Blk. Com. 160; and Sullivan’s Lect. 413.
   Bucearan, Ch. J.

delivered the opinion of the court.' The first question which presents itself for consideration, is whether the order of the chancellor, of the twelfth of February 1825, is of such a character as to form a fit subject of appeal to this court? That an appeal will not properly lie from every order of the court of chancery, suck as mere practical orders made in the progress of a cause, or orders preparative of a cause for final hearing, and which do not affect the rights of ¿he litigating parties, is most certain, and appeals of that description will never receive the countenance of this court. If it were otherwise, it would be found difficult, if not impracticable, ever to bring a much controverted suit to issue, at every step in the progress of which it may be necessary to make an order of some kind or other. There is, however, much difficulty in drawing a precise line between such orders as furnish sufficient grounds of appeal, and such as do not, so as effectually to guard against the mischief of occasional hardship and injustice ori the one side; and vexatious de^ lays on the other; Nó fixed and definite rule can well be established; but every case must, in some measure, depend upon its owii peciiliar circumstances; íh Snowden’s Ex’rs. vs. Dorsey, decided in this court at the June term i 823, the order .appealed frorii settled nothing in dispute between the parties, it decided no question of right between them, but left the matter iii controversy open for future adjudication; and, in the words of the chancellor, was only preparatory to a final decreé, the decision therefore was made with á view to the particular features of thát oi'der; whifch boré rio impress of - the chancellor’s judicial opinion upon the merits of thé cáse, consequently the party was in no way aggrieved, and there was nothing for the- authority of an appellate court to act upon.

But where there is a decretal order passed upon the issue in á cause; in relation to the subject matter in controversy; which decides rind settles the question of right between the parties,- tliéte an appeal will properly lie.

Arid whether an appeal will lie in any given case, is perhaps a question proper to be decided by this court only, being a question relating to its-jurisdiction touching the rights of .the citizen, which can be controled by no other court.

, The main question presented by the bill and answer in this cause; is whether the, money in controversy between the parties was deposited with Hugh Thompson by Marcus Hey land, for the use and benefit of the holders of certain bills of exchange which had been, drawn by HeyJand; or was paid to, átíd received by Thompson for his own use, in discharge of a debt due to him from the house of William and John Bell & Co. On that question the parties are directly at issue, the bill expressly charging that the money was so deposited for the use and benefit of the holders of the bills of exchange, and the answer of Thompson positively denying it, and avering that it was paid to him for his own use, and on account of a debt due to him from William and John Bell & Co. The solution of which question depends upon the construction of an agreement entered into on the 8th January 1811, between Thompson and Heytand, and filed as an exhibit in the cause.

It is obvious, therefore, that a decision involving, the construction of that agreement, is a decision of the whole matter in controversy, so far at least as Thompson is "concerned.

The chancellor has given a construction to that agreement, and in doing so has expressly decided-, “that Thompson has no right or title whatever to the money” in controversy; and on that decision, the order of the 12th of February 1825, to bring the money into court, is founded; in which order also the chancellor says explicitly, that Thomp« son received the money from lleyland, for the use of Heylandds creditors, the holders of the bills of exchange. The order then Was passed upon the issue in the cause relativé to the subject matter in dispute, and involves a decision of the question of right between the parties. It is of a chai'acter to draw after it the coercive process of the court of chancery, and as distinctly decides the matter in controversy, so far as respects Thompson, as if it was a final decree, and if wrong, is as much calculated to aggrieve the party, and therefore as properly the subject of an appeal

The question next to be considered is, whether an appeal from that decretal order of the chancellor has been regularly taken-,, and properly brought before this? court?

The act of 1713, ch. 4, for regulating writs of error, and granting appeals from and ,to the courts of common law, &c. directs, (sec. 4, 5,) as the “method and rule of prosecuting appeals and writs of error,” that the party appealing, or suing out a writ of error, shall procure a transcript of the full proceedings of. the court from which the appeal shall be made, or against whose judgment the writ of error shall bo brought, under the hand of the clerk of the said court, and seal thereof, and shall cause the same to be transmitted to the court before whom such appeal or writ of error is or ought to be heard, tried and determined; and that all appeals so made shall be admitted and allowed by the superior courts to whom such appeals shall be so made in nature of a writ of error; and that every clerk of a court shall, at the time of the sitting of any court to which he belongs, and when any appeal shall be demanded, enter a memorandum of such demand, as well in his court’s proceedings, as in the fair records of She proceedings of such court, under a penalty prescribed-This act, it will be percéived; has no. relátión tó appeals from chancery; but by the third section of the act of 1729; ch. 3, appeals from the court of chancery ' to the court of appeals, are directed to be prosecuted in the same-manner as appeals from the courts of common law are. That manner, it is seen, is to démarid an appeal, to procure a transcript of the proceedings tinder séal, and cause it to be transmitted to the appellate court; tó be there admitted and allowed; of which demand, it is the duty ot the clerk to inter a memorandum as well in his court’s proceedings, as in the fair records of thé proceedings of such court. All which has been dime irt this case; the. appeal Was 'demand-id in the ordinary and usual mode, by way of motion to the:: Chancellor to grant an appeal, which he refused. -

A writ of error is mandatory; and does not leave it in the discretion of the subordinate ti iburial to refuse or assent to the cáiisé being carried up. By the laws of this state, appeals aré(placed upon the samé footing with writs of error, aud the sahife effect and operation given to them, with directions to thé appellate court to admit and allow them. It Was not, therefore, necessary that the chancellor should grant the appeal demanded in this case; to enable the party to bring it up; he was entitled to it as-a.matter of right; which could not be withheld, arid had nothing to do, but to pursúe the mode of prosecuting it, which is directed by the' acts of 1713, ch. 4, s. 4, 5, arid 1729, ch. 3, s. 3. This appears to have been done, arid he is, we think, rectus in curia.

' In England it has been thought right in principle that’ appeals should lie from chancery to a tribunal of ulterior jurisdiction, the House of Peers, without consulting the will of the chancellor on the subject. In this state the same principle is recognized, and this court, the court of appeals! is constituted the appellate tribunal; thé difference resting only in the constitution of the respective appellate courts, and in the particular manner of carrying up or prosecuting appeals; the mode there being by petition, to the court of last resort, and here, by demanding an ap_ peal according to the directions of the acts of assembly? but neither there or here, is it necessary that the appeal should be allowed by the chancellor, nor is any power vested in him to Withhold it; it lies ex debito justicies, and is not granted by the chancellor ex gratia. Indeed, if not distinctly admitted, it was scarcely denied by the counsel who closed the argument on the part of the complainants in the bill, that the appeal is properly before us. But it is, contended diat this court, constituted as it is,- a mere appellate tribunal, without any original jurisdiction,has no authority to interpose, by order, or. otherwise, to suspend further proceedings in chancery, pending the appeal, on the matter from whicli the appeal is made.

It is difficult in this state to ascertain what has been the practice at different periods of onr juridical history. Before the year 1729, the ultimate appeal was at one time, to the King in Councilj and by an act of- the legislature of the then province, passed in the year 1721-,appeals were given to the governor and council, but no mode of prosecuting or carrying them up was provided, and probably the. mode of carrying up appeals in England was formerly pursued here.

But ba that as it may, (and as far as concerns this case it is unnecessary to inquire,) the manner of prosecuting appeals does not now depend upon mere practice, but is expressly regulated by the positive provisions of the acts of J.713, ch. 4, s. 4, 5, and 1729, ch. 3, s. 3. The second section of the act of 1713, ch. 4, provides, that an execution upon a judgment obtained in a court of common law, shall not be siayed or delayed, or any supersedeas granted upon any appeal or writ of error from any such court, unless at the time of making the appeal, or suing out the, writ of error, a bond shall be given with sufficient sureties, such as the justices of the court by. whom, the judgment is given, or the keeper of the seal, to wiiorn application shall be made for such writ of error, shall approve, in, double the amount of the sum recovered, &c. That section is confined exclusively to judgments obtained-in courts of common law, and is not extended by the act of' 1729 to decrees in chancery. There is, however, a practice of great antiquity grown, up in chancery, to file a bond, at the time of taking an appeal from a decree of that court, on which all proceedings are siayed pending the appeal.. This practice, is supposed to owe its origin to the act of 1713, and to have been adopted in chancery by way of analogy to the provision of the second section of that act, in relation to the bonds required to be given in cases of appeal from judgments rendered in courts of common law* which probably was the case; hut as no appeal'or writ of error will lie, except on a final judgment in a court of common law,, that analogy can only hold in cases of appeal from final decrees in chancery; and there being nothing in the, act of assembly prohibiting a stay of execution, on appeals, from chancery, without bond, ,thq question is, presented, \vhether.if in such, a case the appeal itself does, not operate as a supersedeas, the power to suspend proceedings in chancery, pending the appeal, any where exists^ and if it does in what tribunal it abides?

Formerly in England' an appeal to the House of Lords, had per se. the effect to stay proceedings in chancery, pending the appeal. That, rule has since been changed, and pow the general rule there is, that an appeal does not stay proceedings, or execution, which can only be effected by order of the. chancellor, on, application made , for that purpose, or by a special order of the House of Lords, which, applications are. made, indiscriminately to the superior or. inferior tribunal^ though most regularly to the former; and; the power, of the. House of Lords to cause a suspension^ by special bi:def, of proceedings in the court of chancery, pending- the appeal, is no where questioned, but is conceded as a necessary incident to its appéllate powers.

In the state of Netp York, the old rule in England- has, been adopted, and there the. appeal does in the first instance. stay proceedings on. the matter or point appealed from, and the party wishing to proceed must, before he can. do so, apply to the chancellor for. leave, (tinless the court of errors should at the, time be in actual session, and in possession of the cause,) which is. granted or not according to, the circumstances of the particular case.

The constitution and principles of the court of chancery in this state, as in. New York, originally emanated from the. court of chancery, in England, from which source we derive our principal stock of information in chancery jurisprudence; and. the general rules governing the court of-chancery there, so far as they are. applicable, have been, 'adopted here, and are. constantly practiced upon.. In Huguenin vs. Baseley, in 15 Vesey, 182, it is said by Lord Eldon, (in reference to the question whether an appeal to the House of Lords stayed proceedings pending the appeal,) to be yery difficult to state positively, what the law was before the year 1807. But by a general: order of the. House of Lords made in that year, in its appellate judicial, and not legislative character, and adopted in conformity to the practice in chancery for a very long course of years, the rale is now set tied, that an appeal has not the effect to stay proceedings; and in the same case the Lord Chancellor observed, it was “much more expedient that the application for an order to stay proceedings should be made to the House of Lords than, to the court below.”

The understanding in this state, (so far as the practice of filing a bond at the time of appealing affords any evidence of it.) is, that an appeal does not of itself stay execution of the decree; which understanding may have originally been borrowed from the practice at the time, of the court of chancery in England, and we have now no disposition to shake it, and can perceive no sufficient reason why it should not be recognized and adopted as a fixed and settled rule for. the government of the court of chancery here. Rut it is manifestly, necessary, to the ends of justice, that there should be a power in special cases to suspend^ proceedings on the matter, appealed from; therefore in, adopting the rule, that an appeal does not stay proceedings, we adopt it with its necessary incidents, which are, that pending the appeal, proceedings may be stayed either by order of the chancellor, on application made to him for that purpose, or by a special order of this court, on such terms as the peculiar circumstances of each particular case may be found to require.

The power of the House of Lords to, slay or suspend proceedings by special order pending an appeal, is not ai^ arbitrarily assumed power, but is incidental to that body, not in its. legislative, but when sitting in its judicial character only, and it is necessarily incident to this court,' to preserve the usefulness of its appellate jurisdiction. If it were otherwise, cases might arise in which the appeal would be but as a shadow, pending which the substance might be lost. It cannot be necessary to go into a specification of cases of that description, they must present them* selves to every mind.

In this case, after the appeal was made, an application •was preferred to the chancellor, to suspend proceedings on. the order appealed from, which was refused, perhaps without an examination by the chancellor into the extent of his powers in relation to that subject.

That he had the power to suspend further proceedings 9a the nutter from which the appeal w^s made, on proper and reasonable terms, we have not the smallest doubt, an# as little, that the same power also rest's with this court, having the. right of revision, we have all the. powers necessary to the beneficial exercise of that right.

Is this then a fit case for the interposition of this court,§ The order of the chancellor is, that the appellant shall bring into court an amount exceeding 870,000, the use or interest of which sum, amounting to more than 84000 a year, would, by an' enforcement of the. order pending the appeal, be wholly lost to him,, without any benefit whatsoever to the complainants; whereas the injury to the appellant would be irreparable, since in no event of the cause could the lost interest be restored to him, or, any compensation for it be made. It is emphatically in, such a state of things, that the power of this court, to cause by special order a suspension of proceedings on the matter appealed from, should be exercised, and not lightly, or, in, every cause; but where the court sees that if the decree or orden appealed from should turn out to be wrong,- the enforcement of it, pending the appeal, would produce an irreparable.inju,ry to the party appealing, it ought and will interpose to prevent such injury, or all the purposes of its* institution, as an appellate court of chancery, will not b,e answered, But it will only interpose in such mariner,, and on such terms, as will not be prejudicial to the adverse party. Under the special circumstances, therefore, of this case, we think that the application by the appellant, for a special order to suspend proceedings in the court of chancery, on the order of the. twelfth of February 1825, pending the appeal in this court from that order, ought to be gratified, on, a bond being filed in that court by. the appellant to the complainants, with condition suited to the nature of the case, and sufficient sureties to' be approved by the chancellor,

The court, therefore, pass the following orders.

Western Shore, State of Maryland,- set.

By the Court of Appeals, June term, 1825.

Whereas it appears by the record of the; proceedings of this court, that in a certain suit depending in the court of chancery for this state, in which John M'Kim, &c. are complainants, and Hugh Thompson and John Bell are defendants, an order was passed by the chancellor, bearing Csde the 12th day of February 1825, which is in the following words, viz. [ Here follows the chancellor's order J] And whereas the .said Hugh Thompson hath appealed front the said order of the chancellor to this court, which appeal is aiow here pending. It is thereupon, this Itth day of July, in the year 1825, upon the petition of the said Hugh Thompson, the above named appellant, ordered by the court of appeals for the western shore, that all further proceeding:; in and upon the said order, and all process to enforce the same, be stayed and suspended in the court of chancery ulit.il the said appeal he heard and determined by this court; Provided the said Hugh Thompson shall file iii the court of chancery a bond to .the complainants in the .court of chancery, in the penalty of one hundred and fifty thousand dollars current money, executed by the said Hugh Thompson, with sufficient sureties to be approved by the chancellor, conditioned, that if the said Hugh Thompson shall not prosecute with effect the Appeal by him made and iiow depending in the court of appeals for the western shore, from an order passed by the court of chancery, on the twelftk day of February eighteen hundred and twenty -five,in a cause in that court depending, in which John Mi Kim, junior, &c. are complainants, and Hugh Thompson and John Bell are defendants, ordering the said Hugh Thompson to bring into the said court, on or before the fourteenth day of April then next, the sum of thirty-nine thousand live hundred said seven dollars and eighty-five cents, being the value of «fight thousand eight hundred and eighty-nine pounds five shillings and four pence, sterling, money of England, together with legal interest thereon from the first day of January in the year eighteen hundred and twelve; and shall not perform and fulfil the said order in case the same shall be affirmed by the court of appeals; and also shall not perform and comply with any order or decree, which shall be made on the sa.id appeal by the court of appeals, and also shall not satisfy and pay to the said complainants all costs and damages that shall.be awarded by the court of appeals, then the said bond to he and remain in full force and virtue, otherwise of no effect. And it is further ordered by this court, that a copy of this order, attested by the clerk of this court, and certified under the seal thereof, be forthwith transmitted by the clerk to the court of chancery.

MOTION AND OB.DEB. CHANTED.  