Davis vs. Tarwater.

[JANUARY It is true, as a general rule, that where there is written evidence of a fact, parol or secondary evidence is inadmissible. It is held, that written acknowledgments and receipts of payment, where the question of such payment is in issue, form exceptions to this rule. 2 Phillips Evidence, (Hill & Cowen's Notes,) 420. Southwick v. Haydon, 7 Cow. 331.

In this instance, however, the record would not have been legitimate evidence as decided by this court in State Bank v. Barber et al., at the present term. The parol evidence, then, was clearly admissible, and the proof positive. There was, then, no error in the judgment and decision of the Circuit Court in this Let the judgment be affirmed.

case.

DAVIS VS. TARWATER.

Where a party appeals from the decree of a Circuit Court in Chancery, but does not enter into recognizance to stay execution, this court may, after it has acquired jurisdiction of the cause, order a stay of execution, upon the appellant entering into recognizance-the power to make such order is inherent in the court-the mode of staying the decree is regulated by statute.

So much of Bentley v. Fowler & Blackburn, 3 Eng. R. 375, as is in conflict herewith, is overruled.

A decree was rendered in the Circuit Court of Hempstead county, sitting in Chancery, against Julia Davis, from which she appealed to the Supreme Court.

The appellant did not enter into recognizance in the court below; but, upon the cause coming into this court, she filed her motion for a stay of proceedings under the decree, upon entering into recognizance before this court.

Mr. Justice SCOTT delivered the opinion of the Court. There can be no doubt but that the "appeal to the Supreme Court," in chancery causes provided for in the Constitution, (Art. 6, sec. 6.) and regulated by statute, our (Dig., ch. 28, sec. 134 to 139 inclusive,) is, in its substance and nature, that same process for which the revision of such cause, that was then, and is still known in England, as "appeals" in reference to such causes. And, it is manifest, that our statute, in the provisions cited, designed to provide for two things in reference to them essentially different, and not necessarily connected: 1st. The mode in which they should be taken and brought into this court: 2d. For the suspension of the execution of the decree during their pendency here.

To accomplish the first object, section 134, (Dig., p. 244,) provides, in general terms, for "an appeal to the Supreme Court, during the term at which such decision, order, or decree is made, and that such appeal shall be granted in the same manner as appeals are granted in suits at law." Thus providing for suitors in equity on equal and parallel means to that previously provided for law suitors, who, before had the additional means of bringing their cases here for revision by writ of error. But as writs of error would not lay for equity suitors, they would have been confined to this single mode, if the Legislature had not, in the next section, (sec. 135,) provided for another independent mode by the special order of this Court, or one of its Judges, at legal discretion, upon inspection of the record, for probable supervenient errors, if applied for within twelve months after the final decision, order or decree complained of, the first mode in no way involving such discretion beyond the demand of the statutory pre-requisite. The two modes being clearly cumulative, as we think, and the latter, as reasonably at the option of the

party, although he may have previously appealed in the Circuit Court, as a writ of error is at his option in a law case, although he may have before appealed there. (Clay's ad. v. Notrebe, Ex., 6 Eng. Rep. 631.) And each mode perfect in itself, as a regulation to bring a cause, when pursued, within the possession of this court for adjudication, in no way dependent upon, or connected with the fact, whether or not the execution of the decree was suspended or not suspended.

Had the Legislature made no further provisions regulating appeals to this court in chancery causes, and a case had been brought up in either of those modes, and was here pending, and a party had desired to suspend the execution of the decree during the pendency of the appeal here, our courts would have been compelled to look to the English courts of like jurisdiction, for precedents not inconsistent with any thing peculiar in our civil institutions. And when looking in that direction, they would have found, that when like appeals were taken to, and were pending in the House of Lords, (which sits in that country as a court of appeals of the last resort for such cases, as this court does in this State.) that the execution of the decree pending the appeal could be suspended only in one of two ways, that is to say, either by an order of the chancery court from where the cause was brought, or by a special order of the House of Lords, where it was pending. And that the application was never granted by either court, unless in cases where equity did not demand such a condition, until the sum recovered was first placed in a state of security: and that this was usually done by requiring the amount of money to be brought into the chancery court, to be there laid out under the direction and control of that court, for the benefit of the party who should be ultimately entitled to it, (per KENT, Chancellor, in Messonier v. Kauman, 3 John. Ch. R. p. 67, 68.)

And this incidental power, exerted upon this foundation, when traced to its source, would be found among the necessary inherent powers of each court, because the power to do justice in a case necessarily included the power to prevent injustice,

else, pending a litigation in chancery, a party might, in the face of the court, remove the subject from its jurisdiction, and thus render the proceedings but a solemn mockery. And the power to reverse a decree, and thereby destroy it, which is greater, does, in the nature of things, as a general principle, include the power to suspend the operation, which is less. And accordingly, Chancellor KENT, when speaking of the power of the Chancery Court of New York, in the case of Bradwell v. Weeks, (1 John. Ch. R. at p. 327,) says: "There must then, as I had occasion lately to consider in the case of Green v. Winter, (ib. 77,) be a power and discretion in the Chancellor, as there is in error in a court of law, (Entwhistle v. Shepherd, 2 T. R. 78. Kempland v. McCauley, 4 Term R. 436,) to determine, in the first instance, upon the operation of the appeal, and to what extent, and upon what points, it shall stay proceedings." And in the same case, when speaking of the powers of the court for the correction of errors, in New York, says: "It has always been supposed that it had authority as a necessary incident to its jurisdiction, to render its practice conformable to the House of Lords in England, when sitting as a court of appeals, and such was the declared sense of that court, by its 6th rule, of February, 1786." And in the case of Messonier v. Kauman, before cited, after again alluding to the undoubted power in the courts of law to "determine in their discretion, when a writ of error was a supersedeas," as a matter "well understood and established," he shows, by citing 15 Vesey 184, that it was the practice of the House of Lords to stay proceedings pending on appeal there from chancery, "by special order of that house."

The conclusion, therefore, is a safe one, that the power of this court, when sitting as a court of errors, to make an order allowing a writ of error to stay the execution at law; and the like power to make an order to suspend the execution of a decree, when sitting as a court of appeals in a chancery cause, is, in its essence and nature, an inherent power, necessarily incident to its jurisdiction over the causes respectively. But by the constitution, the appellate power of this court, whether exerted upon

law or equity causes, may be regulated in its operation in such manner as may be, from time to time prescribed by law. And as to law causes, the legislature have so regulated this incidental power as to inhibit this court from making any order allowing a writ of error to stay proceedings at law for execution, except in certain specified cases, unless a recognizance, as pointed out by the statute, shall be first entered into. (Dig. ch. 127, sec. 16.) Thus legislating, as to this, as to any case that can come here by writ of error. And law causes brought up by appeal stand upon the same footing. And in all such cases, although this court, in making orders to stay proceedings, acts in accordance with the statute regulations, still, the power it exerts is its own inherent power, although its exercise is thus regulated by the statute as contemplated by the constitution. And, but for these regulations of the statute, this court would have been authorized, and would doubtless have exercised their powers of this class, in accordance with English precedents.

Then, by a parity of reasoning, there can be no doubt but that we have the power to grant the application before us; but the question to be determined is, whether or not the regulation prescribed by the legislature relating to the stay of proceedings, in chancery cases pending appeals here, is sufficiently broad to include this cause. If they are sufficiently comprehensive, we must grant or refuse it in pursuance of these regulations; if they are not, we must grant or refuse it in conformity to English precedents, as a case without the statute, and not inhibited by it.

And placing this question upon its broadest and strongest ground against this application, and assuming that the legislature intended to embrace every case where a stay of proceedings could be applied for, and to inhibit all cases that they did not provide for, and then interpret this statute according to its letter, and without any reference to its spirit or mischief and the remedy, and nevertheless, a stay of proceedings in a case at bar, is not necessarily withheld. And this will appear by an examination of the provisions of the two sections of the statute (secs. 136, 137.) The first provides that "the appeal" (except in specified