The following dissenting opinion was delivered by
Catón, J.’After the most' mature reflection in connexion with the authorities adduced on the argument, my mind has - been brought to the conclusion .that the receipt by Duncan, ,of. the money awarded to him by the decree, did not operate,as a release of the errors which may have been committed against him in other parts of the decree. A decree in chancery is not necessarily an unit; but often, and indeed most generally, consists of several distindt, separate and independent parts, as is the case here. And any party, complaining of any part of such decree, can bring it here and assign such part of the decree for error as he complains of, and then we can- adjudicate only upon the errors assigned. When the error assigned goes to the whole foundation of the decree, as the want of proper parties, or want'of jurisdiction of the parties and the like, then the whole decree must be reversed, and the cause remanded, that It maybe.placed in a proper condition to be heard. But where' the error assigned only goes to a part of the detiree which has been improperly adjudicated against the parties complaining, then we only have to do with such part of the decree as is thus assigned for error, and we cannot put the plaintiff in error in any worse condition than he was before. The very averment of the defendant in his joinder in error is, that there is no error, and he prays that the decree may be affirmed. He neither asks, nor have we a right to give him any more than he has in the decree below. When the cause is properly brought to a hearing, and the decree consists of sevferal facts, apart only of which is assigned for error, we cannot reverse the decree entirety, but only such part as is assigned for error, the others indeed not being before us. We have decided at this term, that a writ of error is an original suit in this Court, the cause of action in which is the supposed error in the decision of the Court below; and shall it be said that we can go beyond that supposed cause of action, and as it were, by way of set off, hunt up something in the decree, of which the defendant has never complained, and does not, by his pleading in the cause, complain, and give him something to which, possibly, he might have been entitled, had he prosecuted his right in proper time, and in a legal way? The defendant in error can put. in no plea of set off, but his joinder in error is in the nature of a demurrer to the plaintiff’s assignment, and the most he can possibly ask is, that the writ shall be dismissed, and the decree affirmed. I repeat, the most we can do for the defendant is to leave him as well off as we find him; and the least we can do for the plaintiff is to leave him in possession of all that is secured to him in the decree below. If, then, Duncan could not be deprived on this writ of error of the money adjudged to him below, then no one can complain that he has taken that which he has secured to him by that decree, and which we cannot take from him. By receiving that which the other party admits, by not complaining he was entitled to, he cannot be said to have released a right which he claims to have, but which the other party denies. Had Negus and Robbins thought that part of the decree, which determined that Duncan was entitled to the rents, unjust, they might have taken an appeal, or brought error, and assigned that part of the decree for error; then, and not till then, could we take cognizance of that supposed error, and if erroneous, reverse that part of the decree. Without an appeal or a supersedeas, Duncan had an undoubted right to receive the money; and its receipt by him in no wise prevented the other parties from prosecuting a writ of error to reverse that part of the decree; and if reversed on such a proceeding, Negus and Robbins would have the same remedy against the administrator of Duncan that they would have had if he had not brought this writ. It may be said that the estate of Duncan is insolvent, so that the money cannot be recovered back from the estate; but that is a misfortune brought about by their own negligence in not taking steps in proper season to lay their complaints before this Court, and to prevent Duncan from collecting the money. Such consequences often follow such negligence. This plea is founded upon the mistaken notion, as I conceive, that the whole decree is before us for reversal or affirmance, as well that part which is not assigned for error, as that which is. If the decision of this case is to establish such a doctrine in this Court, I fear the length to which it will lead us, is hardly appreciated. It is a novel doctrine, as I apprehend, engrafted. upon our system of chancery practice, which will require touch pruning, to say the least. But I am not without authority to sustain the views which I entertain on this subject. In the case of Close v. Dickenson, 8 Cowen, 3, this question came before the Court of Errors of New York, in a case much stronger for the defendant in error than the present, where it was unanimously decided by that Court, that a party who had accepted and receipted for a sum of money which had been awarded to him in the decree, might still take the case to the Court of Errors, and claim that he was entitled to more than had been adjudged to him. In that case, the part of the decree complained of, was necessarily the very part under which he had received the money; depending on the same pleading and proof, all of which unavoidably came in review in the appellate Court, and yet the Court decided in substance, that notwithstanding the case might have shown that the plaintiff in error was entitled to less than he had received, yet, the appellate Court could not diminish that amount in the proceeding then before it. In that case, Chancellor Jones and Senators Spencer and Golden all delivered opinions on the same side, and I may truly say that they are among the brightest ornaments that have ever adorned the legal profession in that State. I think the demurrer to the replication in this case should be carried back and sustained to the plea.
Writ dismissed.