The defendants in their answer denied the existence of the errors alleged in the petition, and insisted that if they existed, the plaintiff was without remedy, the decree in the original cause being final, as it disposed of the cause, and even of the costs.
The original decree was filed with the answer, as an exhibit. It was entered at August Session, 1822. By it the shares due the several distributees were settled, the costs disposed of, and an execution awarded.
At February Term, 1824, of the county court the clerk was directed to take a new the accounts between the parties. By his report it appeared that the errors of which the plaintiff complained existed, and the county court made a decree for the plaintiff, correcting the former decree, from which the defendants appealed.
DANIEL, J., on the Fall Circuit of 1827, dismissed the petition, being of opinion that the county court had full power to rehear or review a decree, upon petition on a proper case, but that there had been a final decree in this cause, and that, in substance, the petition sought for a rehearing of it. Whereupon, the plaintiff appealed. The expense and delay incident to an application to chancery for legacies or distribution was too obvious a mischief not to call for a remedy, more especially when there was but one court of that *Page 118 description existing in the then colony, and a great proportion of the rights sought for were comparatively of small amount. This remedy is applied by the act of 1762, and the mode of it is by investing the Superior and county courts with equity jurisdiction on these subjects. To insure a speedy trial of such causes, certain rules were prescribed by the Legislature, and these must undoubtedly be observed, as far as they extend; but where a case arises that is not provided for by these rules, recourse must be necessarily had to the practice of a court of chancery.
The jurisdictions are concurrent on the subjects contemplated, but in the inferior courts means are adopted to accelerate the trial of causes. To construe the powers conferred on these courts as an exclusion of others would be to deny the right of awarding a new trial or of granting an appeal, neither of which are provided for by the laws, though they have been constantly exercised, as well as many others appertaining to the equity jurisdiction. Nor can any reason be imagined which justifies the propriety of refusing to rehear or review a decree in the county court, whilst a decree made in the Superior Court is subject to this revision. It never could have been the intent of the Legislature that an imperfect degree of justice should be administered when the (203) decree was rendered in the county court, when they are cautious to secure a full measure of it in the Superior Court, by guarding against any construction which may tend to abridge the powers of the latter in expressly providing that the powers of the court of chancery shall not be limited as to such subjects. The whole spirit and object of the act require a construction which shall put those courts fully into possession of the means of doing justice when they are applied to; otherwise, they will cease to answer the purposes of their establishment, for they cannot "proceed to hear and determine the same according as the matter in equity and law shall appear to them, without regard to form," unless they can also rehear and review the same upon a proper case being made.
Having no doubt as to the authority of the court to rehear and review, it is necessary to inquire whether this forms a proper case for either.
The only two grounds upon which a bill of review can be maintained are, first, for error apparent on the face of the decree; second, for new matter discovered since. The subject of complaint made in this petition is that the clerk showed the petitioner a statement, according to which he understood the account was to be settled; but no error appears on the face of the decree, and the ground of complaint was known to the petitioner before the decree was entered. He alleges that when the decree was made he though the account was settled in the manner the clerk told him it would be; but an ordinary degree of vigilance would have saved him from this mistake. *Page 119
It is clear that after the enrollment of a decree the cause cannot be reheard, and although we have no regular enrollment in this State, according to the practice in chancery, yet it has been uniformly considered that after the term at which the decree was heard, if it was final and the parties out of the court, such was equivalent to enrollment. Nor does any difference exist between decrees on accounts and others; for the cases only show that decrees to account are not enrolled, (204) not that the decree made after the account comes in is not enrolled. This is plain, from the reason given in the book: the first decree is not enrolled because it ties up the hands of the court from relieving if there should have been any defect in the directions of the decree. But after the account is returned by the master, and the parties have an opportunity of excepting, there can be no reason why the final decree should not be enrolled; more especially as according to Lord Bacon's second ordinance an error in calculation (miscasting) may be rectified without a bill of review.
PER CURIAM. The decree dismissing the petition is affirmed.
Cited: Bible Soc. v. Hollister, 54 N.C. 14; Flemming v. Roberts.84 N.C. 540; Farrar v. Staton, 101 N.C. 84;Hunter v. Nelson, 151 N.C. 186.
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