court of^rrors have power to try a question
A question has been raised on this motion, as to the mode of proceeding in this court, to try a Iuesti°n fact arising here, after the record has been received from the court below. In a former case, (a) I have ^n^maj.e¿ inclination of my mind, that this court, cannot send down any such question to be tried by an inferior court. But it is not necessary to decide that point in this case, as it may be otherwise disposed of. The facts upon which the motion is founded are not denied; and there can be no use in* having a trial to ascertain facts which are in effect admitted.
The only question, therefore, is, does the fact that a party has voluntarily received the fruits of his decree, *preclude *331him from appealing, in order to obtain its reversal or fication.
whether a Plef of a?c°rd tion of a writ in
The case of Pixlee v. Salmon, in the court of errors in Connecticut; was where the payment was pleaded as an accord and' satisfaction. That is not pretended in: the present case. But even as to that- case, the supreme court of this state, iu Potter v. Smith, express a doubt whether süch a plea would be good. The authorities'which hav*e cited in Dyett v. Pendleton,(a) go no farther than to show that a r'eleasa of errors, or an agreement not to prosecute a writ of error, will induce the court to qiiash thd writ;- But in' this case no such fact is presented. Iu the absence of any adjudged caáe, I cannot undertake to introduce an exception into the statute allowing appeals and writs of error, unless there be soriie strong reason assigned which shows that such exception would be within the meaning of the legislature. I cannot discover any such reason, in'the fact that a party accepted what lie was entitled to by the judgment of a court, and which would belong to him in aiiy event; for I cannot admit the correctness of the argument of the counsel for the respondents, that this decree may be reversed in toto. This court can decide only on the objections taken by the appellant, and in this case as it now stands. The appellant, therefore, can never be to refund the money he has received. A' defendant, in a . , , J , _ ' judgment- m the supreme court, has five years to bring error, although he might have stayed the collection of the judgment; and a defendant in chancery has the samé time for appeal, although he may have been obliged to pay the amount of the decree. It appears to me that these rights L1 °t should be reciprocal; and as the defendant may bring error or may appeal,5 notwithstanding be has paid the judgment or decree, I think the plaintiff has the same right, notwithstanding his acceptance of such payment. I" am, therefore, of opinion that'the motion be denied • but without costs to either party.
The court of ®.r™rsonc™ jections made not r®verse or modify a decree on objecRespondentthe
Defendants have Peaekl£f| n§'b1, to bnnEf error or appeal from a final within^ ?ears; and W as no objection that the mo- ” p}'paS| mean time, been paid on the judgment or decree in the court be low.
'sOoldek, Senator.I concur that this motion must be *332denied: but, before we decide, I beg leave to advert to a , j? m which it may be necessary for us to try a question of fact by a jury; and I, therefore, think we ought not hastj]y to commit ourselves upon that point. It is not ne* cessary, in this case, that we should collectively or indiyidually conclude either way; for here is no dispute about facts. I find, on examining the books, that, in the course °f a writ of error, issues of fact are many times joined; and that they are always decided by jury. Whether the court of errors question of b^juryTtned How, I should suppose that power must be incidental to this court. It is certainly the only constitutional way of determining such a question. There is no precedent of a proceeding on this head, that I find. A case may be conceived where it will be necessary to make one. Suppose a release of errors; may it not be pleaded, and issue joined; and can we try such an issue on affidavit ? I apprehend we should find ourselves obliged to put the case before a jury in some way; and on a question of fact arising upon appeal, I should suppose we might award an issue, or send the question back to chancery. I do not mean to say that I have come to any fixed conclusion; but I make these remarks to preclude any inference against the right to try by jury.
a finaTdecree lies at any time W1 m yeara"
As to the merits of this application, I cannot see that t*1616 anything in the lapse of time. The law has fixed the limitation at 5 years. Either party may prosecute an appeal at any time within this period. He may take the full indulgence of the law. As to the effect of payment, I , . . • t-. ,, ,, ' had occasion to express my views m Dyett v. Pendleton; an¿ j feel confirmed, on reflection, that no matter how the ’ ’ money is paid or collected, this cannot affect the right to bring error or appeal. Payment of judgment or decree does not preclude error or appeal‘ Every case cited on that occasion,
where the courts have interfered with the writ of error, was either of express stipulation, or where the proceeding was most palpably unfounded and ‘vexatious. Here is no agreement or stipulation pretended. [1]
Per totam Curiam,
Motion denied.
See the next preceding case.
Ante, 325.
An appeal lies from a decree in chancery, taken hy consent. Brewer v. State of Connecticut, 9 Ohio Rep. 189.
*332-1Where the time for appealing depends upon a rule of the appellate court, such court, upon a sufficient excuse shown, may suspend its rule, and allow an appeal, although such appeal was not brought within the time prescribed by the rule for appealing. Caldwell v. Mayor, &c., of Albany, 9 Paige, 572; Vide 1 Paige, 391.
But where the time for appealing is fixed by statute, and the appeal is not brought within such time, the court is not authorized to extend the time, eren upon a good excuse shown; as the lapse of time is an absolute bar to the appeal, Ib. Vide Mart. N. C. Rep. 39; 1 Hump. Tenn. Rep. 60; I Paige, 423; 6 Wen. 136; Amer. Chancery Digest, vol. 1, p. 154, Nos. 191, 198.
See Monell’s Practice, p. 134, et seq.