Smith v. Bowes

Alvey, J., delivered the opinion of the Court. This is an application by bill in equity, to have corrected certain defects in a supersedeas judgment, which this Court has heretofore held to be void by reason of such defects. Bowes vs. Isaacs, 33 Md., 535 . The facts, by which the defects are made to appear, are fully stated in the report of the case on the former appeal, taken from the order of the Superior Court, refusing to strike out the supersedeas.

We have said that the clerk iu taking the supersedeas, and approving the sufficiency of the sureties therein, did not so act as the clerk of the Court in which the original judgment was obtained as to be under its authority and control, as in the discharge of his ordinary duties as such; but he acted in taking and approving the supersedeas by virtue of a special power and authority conferred on him by the Code, Art. 18, sec. 23. And it was made to appear on the former appeal, as on the present, that the supersedeas was first signed in blank, and after-wards filled up by the clerk, and that he changed essential dates therein, out of the presence and without the authority of the parties signing the instrument; and ⁴⁶⁶ that the correct date for the expiration of the stay of execution was never inserted in the supersedeas at all. This, we said, was a disregard of the requirements of the law, and a practice that could not be sanctioned ; and we were clearly of opinion, upon the facts of"the case, that the supersedeas, as it was not taken in conformity to law, should, therefore, have been stricken out or set aside on the motion made for that purpose. Now, the question is, has a Court, of Equity, in the exercise of its jurisdiction for the correction of mistakes, the power to make the supe'rsedeas thus taken valid and effectual, notwithstanding it has been declared to be invalid, because not in conformity to law?

We think not, and for obvious reasons. In regard to the equitable jurisdiction to remedy or supply defective execution of powers, the authorities are uniform in recognizing a plain distinction between powers created by private persons and such as are created or prescribed by statute. Eor, while a Court of Equity may, in a proper case, relieve against the defective execution of a power of the former class, it cannot relieve against the defective execution of a power of the latter class, nor dispense with or supply any of the formalities required for its due and legal execution; as, by so doing, equity might defeat the policy of the statute. In the case of statutable powers, therefore, equity must follow the law, no matter how meritorious the consideration may be ; for the legislature is not presumed to have reposed discretion in a Court of