, 1873-06-03
A, Chancellor Must Not Trust to
Reoolleotion---The' Tioklish,
Nature Of q Decree.
The Constitution Guarantees Every Liti-
giant the Right to Have ]lidg.
-n1ent Reviewed.
Doubtful Points Decided Possessing Inter.
est to Many Anto-Fire Litigants.

bE3SAet GsHiIAIA " I'LL bGEUAklNk IL tQO G3tHtN
John A. Washington, tho Supreme Court Of th
State has decided eoveral points Of interest
tho oprofession, and to litigants having Ind cas-
about to bo decided at the. tino Of tho groat fir
in which tho deorcos wore not ontorsd-of whit
there ARC many, Of m important character no
pending in thia State, which this opinion vi
settlo.
Tho following Ia tho opinion, by ,Walkor,: Jul
ttco, tho cases boing instituted In tho supreu
Court George Il. Il, uugheB ct al. Y, Richard ]
Washington, executor, oto.: - -.
These caaos present substantially tho san
aueattona, md VIC therefore eunsidor them OIL
They wero brought by tho hoirs Of John 1
Washington against George 4. II. Hughes an
tho heirs Of sandcraon Robort. Tho bills wei
fled to sat asido and annul contracts OF aslo of
LARGE AND VALUABLE HEAL ESTATE y.
IN tho City Of Chicago, BY Hughos, as tho ngon
Of Washington's hoirs, to Robert. Tho ground
alleged for resembling tho contract was fraud
Tho caacs wero heard together in tho Olrou,
Court Of Cook County On tho 9Th day of May
1871, Tho evidence was .. worry volumi
nous, md consisted largely. Of lestor.
sent md received by the various partIee
depoeitions, and other documentary evidence,
tho court below decided tic casos tn: favor .5 Of
complainants, but, before any deoroo was ronier.
cd OF enrolled, tho fire of October Of that ven,
destroyed tho court:fouso and oil tho papers in
the caaes; both plondings and .ovidonco: coun-
tho cases.. The dofondaut then made u motion
for timo to rotako and -,-. e., -. -.7
RESTORE ALL or THE DESTROYED EVIDENCE.
and urged their right to hayo tho 'oYidonco rc,
stored and on file before tlecroo should bo
passed and filed for record, or ib recorded. Tho
motion Of tho defendants rms, .tlouidJ and tho
Court, from momory Of the evidence, pronounced
aeoroe IN each case, and they were. fully on
f rolled snu necamo iina'. From that docreo the d.
Court to atny tho rendition Of tho decrae until
tho evidence con1d DO restored, as ono OF the or
rorB in tho. .caao, and from tic Wow wo tako OF
other. -" ~ - l. =
According to the ancient practice in tho
English Court of 'Ohancory, tho decree rocitod
at longth the ontiro ploadings in tho case, and
tho substance Of tho evidence contained in tho
modified in that Court in modern timcs, bit its
decreca atill retain full rectale. In our Courts
Of Chancory, the practice has permitted, but not
required; such roctaa, especially Of the evidence:
nr4,;n Tns practice 3,s has ontataed neither in Great
tho substance Of tic evidence they contain.
pertinent to tho isaue: Az tho practice in chan
Gerry has always required the evidence to bo in
writing, Of, It oral, to bc reduced to writing and
preserved in the record, 1t is apparent thst Tie
old practice Of ombodying It ii Tho decree was sl
not material, aa 1t could At al timea 10 referred
TO Tor the purpoao Of soeing upon what tho do
the evidence, and hence our practice dispensed
tico as modified does not dspenho with the abso-
ie rasor necsss Whs Of te eyideqss IL tho
Pearce, A H., 41s Hills Oh. ri. $40, and numor.
ous other cases, recognize tho rulo. l.
on An APPEAL. FROM TIE DECREE
Zach party has u. aho 1ight to rely upon the evi
roctncas Of tho conclusions at which tho Court
has arrived. And In such q caso the finding OF
the facts in the dooree will DO controlled BY
tho evidence in the record, whom L
Tho appellate court will look into into the
record to SEQ whethor tho evidence warrants
tho Court in its action in finding tho facts stated
IN the decree, md II, from all tho evidence that
tho finding Of p faos til tSe Ss0t Apeae oears eafsa In If
dtarogard tho findings, ind will DO controlled By
tho evidence. Under tho anciont praotico. tho
decrecs In these caeea would have contained
fa fGmPie,n record 9f ths sase and from It alone
erroE had intorvencd. And II tho evidence
had boon preserved In tho record, tho same re-
SUIT would follow when complete record is pro-
eSntea eSa tor consideration But in tho position
power to show that Clio facts found by tho Chan
eeiior IN the decreo aSe not warranted BY Tho
eVldenoo.
IT rs AN uNpounrED RIGHT.
and 1eoreo reo;do 10 which 10 is pary pnasod upon
hs tho Constitution u las eRease RnsesntaoS souf' ta
n1m No Nor can the courts by rule et practice de-
efficacy. And IN III common law Snnaa ap1u un1er ier
our atntnto, 1t is tho duty Of tle party dosirino
20 nave tho case roviowed on tho evidence, to |
pr y p thg t1 1eG9rd or the presumpton
erly in ltB decision. Not 80 with deoroo ia 10
presumption is indulged beyond tic. extent to |
whfh't to Is anstainea By tho proof appearing
= =, sho ,,,rts TeeGra. Hence II devoves upo1
~ to preserve evidence that will .euatain
ne decree, or it must find that facts were proyod
'oraed.', ~ -"
n rendering .theso dccreos before tho eyidonoa
Fas restored? It Is conteDded that innarnuch
8 tho Chancellor had ileard tho evidence and
LAY LAY snnannood t'1;'f what bis decision would be- apd
o "1stten dacoa out sta9ment of Tho grounds for
othing. remained hut tllo tl''aoa formal maj
lattor Of drawing md passing tho locrco. This
IN man11estly not the correct view. Of tho quoa-
caring iy had tho Chancellor pronouueoa M hia I
ecree. and tho Register takes minutos Of Il.
nd they; aro usually read ovor by him to the
artles 2; pr Their solicitors, and coplos Of such
te papess pfS NY spS for and
'on omitted, saa Tho heeistsr rns 3ssiasss as
,do m correct r. IT, tahnonnn.l application may be
mntas to tao are n9ss seod to '15s' s @ hs a
rty wo demanded o % ocsoo usIstia syiur 70 bseo seo
turned aud an Office copy taken by tho adverse
ssy,, ths nont stop to be takon is to llavo 1t I