1 Robbins. State Mutual B. and L. Ass'n v. O'Callaghan. which was mentioned in the mortgage, but that the defendant claimed that certain fines, premiums and monthly payments on stock which were covered by the bond were not specifically included in the verbiage of the mortgage. It was also stated, and admitted by counsel, that the premises covered by the mortgage were what is known as tenement-house property, bringing in a large rent, and that the defendant was in possession, receiving the rents and profits. I asked the counsel of the defendant, the petitioner herein, if he was willing that a receiver should be appointed at once to take the rents and profits pending the proceedings before the master to restate the account and ascertain the amount due. This he positively declined. Whereupon, being of the opinion. that inasmuch as the petitioner admitted that there was $42,000 due upon the mortgage on January 8th, which with interest up to the time when the sale could take place and the deed be delivered would be at least $1,000 more, besides costs and sheriff's execution fees, and inasmuch as the judgment creditors clearly, by the practice of this court, were entitled to and had not received notice of the present proceedings, and the largest one of them-the Second National Bank of Jersey. City-was a strong institution, with a considerable sum of money at stake and entirely able to take care of itself, and that it would probably bid the property up to its full value, and that complainant would naturally feel inclined to bid it up to the amount of its decree, it would be unfair and inequitable, not to say unlawful, to stay the sale, therefore, I discharged the rule, but with my own hand inserted in the order of discharge the words "without prejudice to defendant's right to renew the application after the sale of the premises." Of course, it was within the power of the court to control the disposition of the proceeds of the sale, and on the (as it now appears, erroneous) view I then took of the rights of the parties and the proper mode of enforcing them, I should have added an order to the sheriff to withhold enough of the proceeds of the sale to cover the amount in dispute. State Mutual B. and L. Ass'n v. O'Callaghan. 67 Eq. The premises were sold May 29th, 1902, to Messrs. Goldstein and Fineburg, for $46,505. The sale was duly reported and confirmed without objection on June 9th, 1902, and the deed was delivered to Messrs. Goldstein and Fineburg, and they paid the consideration money and, in aid of such payment, obtained a loan from the Commercial Trust Company, which is now a mortgagee of the premises. The amount paid and bid was some $362.60 less than the amount due the complainant by the decree at the date of the delivery of the deed. No evidence was offered before me, on the hearing of the present matter, to show that the property did not bring its full value at the sale. If defendant, after the sale, had pursued the remedy reserved to him by the order of May 22d, and had made prompt application to the court, an inquiry would have been made into the correctness of the master's report and any error found therein corrected, and the amount which the proceeds of the sale exceeded the amount really due the complainant would have been applied to the payment of the junior encumbrances, and if it exceeded the amount due thereon would have been paid as surplus money to the petitioner. There was ample time to arrest the purchase-money in the hands of the sheriff. (It was admitted by his counsel that he paid no attention to and did not attend the sale, and gave no notice thereat of this appeal.) The defendant, however, who is an attorney of the supreme court, was not advised to take that course, but, on May 26th, appealed from the order of May 22d to the court of errors and appeals. His notice of appeal is as follows: "The defendant, Edward A. O'Callaghan, hereby appeals from an order made on the twenty-second day of May, nineteen hundred and two, discharging an order to show cause why the final decree entered in this cause should not be opened, and from the whole and every part thereof. "And the said defendant hereby appeals from so much of the final decree made in this court in the above-stated cause as declares that there is due to the complainant on the said mortgage the sum of forty-five thousand 1 Robbins. State Mutual B. and L. Ass'n v. O'Callaghan. and one hundred and thirty-two dollars and ninety-two cents ($45,132.92), and directing sale of said property to realize said amount to the court of errors and appeals in the last resort in all causes." The petition of appeal is to the same effect. After the hearing of that appeal, the court of errors and appeals entered a decree as follows: "It is thereupon ** ordered, adjudged and decreed that the order of the chancellor, made on the twenty-second day of May, nineteen hundred and two (filed May 23d, 1902), discharging the order to show cause returnable on the twenty-eighth day of April, nineteen hundred and two, be and the same hereby is in all parts reversed, and that the record and proceedings be remitted to the court of chancery, to be therein proceeded on according to law and the practice of said court." Thus it will be seen that though the final decree was brought directly before the court of errors and appeals for review, it was not disturbed by that court. After the entry of this decree of reversal, the petitioner moved, upon notice to complainant, to the purchaser at the sheriff's sale and to the mortgagee, as follows: "Take notice, that on Monday, the second day of November next, at the chancery chambers in Jersey City, at ten o'clock in the forenoon, or as soon thereafter as counsel can be heard thereon, I shall apply to the court of chancery to set aside the sale by the sheriff of the property sold under execution issued in the above-entitled cause, and shall also apply to set aside all deeds and encumbrances and all proceedings had under or by virtue of said sale by said sheriff of Hudson county, and I shall apply for such other relief as may be proper or incidental to the reversal of the order made by said court on the twenty-second day of May, nineteen hundred and two, discharging an order to show cause, with stay theretofore made." That motion was resisted by all the parties. It was supported by counsel for petitioner upon two groundsfirst, by the language of the judge who spoke for the court of errors and appeals, 65 N. J. Eq. (20 Dick.) 738, upon which the decree of reversal was entered; and second, upon the strength of the case known as the National Docks Case, 54 N. J. Eq. (9 Dick.) 647. State Mutual B. and L. Ass'n v. O'Callaghan. 67 Eq. With regard to the first ground: I declined, at the argument, to refer to the opinion of the court of errors and appeals, for the reason that I thought I was properly confined to the language of the decree of reversal. My own learning and (until recently) unvaried experience have been that a decree of either modification or reversal granted by the court of errors and appeals should direct specifically what decree the court below should enter. This, according to my experience, has always been the practice, and, in my humble judgment, is the only proper practice. For instance, if the decree appealed from be for complainant, and the opinion of the appellate court should be that the complainant was not entitled to any relief, but that the bill should have been dismissed, it is the duty of the counsel of the successful appellant to have it declared in the decree of reversal that the court below shall enter a decree dismissing the bill. Or, if the court in such a case should hold that the complainant is entitled to some relief, but not to as much or the same that the court below has awarded him, the decree of reversal should state exactly to what relief he was entitled; then, when the decree of reversal or modification is presented to the court of chancery, it, by its decree, simply says "that in obedience to the mandate of the appellate court, it is decreed as follows," &c. This practice, in my time at the bar, was carried so far that in complicated cases of reversal or modification the counsel for the successful party was expected to submit a draft of the proposed decree to the opposite party, and in cases of objection, then to the appellate court for approval. Another reason why I declined to look at the opinion was that I had in mind at least one instance where I found that the actual decree entered in the appellate court did not correspond with the opinion. I refer to the case of Pancoast v. Geishaker, 58 N. J. Eq. (13 Dick.) 537. This will be seen by a copy of the actual decree in that case presented to me in the case of Bacon v. Fay, 63 N. J. Eq. (18 Dick.) 411, and copied by me at p. 417. 1 Robbins. State Mutual B. and L. Ass'n v. O'Callaghan. This risk of variance between the actual decree and the opinion of the court arises out of the well-known circumstance that until recently, at least, all the members of that court have not, at all times, had an opportunity to scan closely the opinion read or filed in the cause, and hence that opinion has not always expressed the views of a majority of the court, although they concurred in the result. Above all, I thought, in a case like the present, where rights of third parties might and in fact did intervene, I ought to presume that if the higher court expected the court below to adopt any such radical, and, I may add, destructive, measure, it ought to and would have expressed clearly in its decree its mandate to that effect. I have, however, since declining to set aside the sale, naturally examined with care the opinion of the learned judge who spoke for the court of errors and appeals. Upon such examination, I do not find any warrant therein for granting the motion in question. The opinion uses this language: "The appeal from the final decree has, for obvious reasons, not been considered. The defendant pursued the proper course in bringing the matter to the notice of the court in which the cause was pending. We are dealing now with the action of the court below upon such application, and not with the final decree, which it is still holding under advisement. "The order discharging the order to show cause must be set aside, and the cause be remitted, to be proceeded with from that point in the court below, in accordance with the views herein expressed." I am not sure that I understand the precise force of the language used, as quoted, with regard to the final decree. If I am to understand that the court of errors and appeals presumes that this court is still holding the decree under advisement, and that it will, in obedience to the mandate, take up the proceeding at the point and in the situation of affairs when the order of May 22d, 1902, was made, and deal now with the final decree as it should have done at that time, then I have to say that, as I understand the practice of this court, all that this |