Wilcox's Adm'r v. Wilkinson's Ex'r
| Decision Date | 31 December 1804 |
| Citation | 5 N.C. 11 |
| Parties | WILCOX'S ADMINISTRATOR v. WILKINSON'S EXECUTOR. |
| Court | North Carolina Supreme Court |
A second rehearing will be granted to reverse the judgment upon the first rehearing, if justice demands it.
The complainant's intestate filed his bill against the defendant's testator, the object of which was to set aside an award which had been made between the parties, and to open accounts on which the award was founded; and the court, many years ago, passed an interlocutory decree to that effect. The defendant preferred a petition praying a rehearing, which was had, and his petition overruled. The accounts were referred to a master, who reported a large sum against the defendant. He filed exceptions to the report, which had stood some years for
argument, when he preferred a second petition praying a rehearing of the interlocutory decree. This petition was objected to on the ground that a second petition praying a rehearing of the same question would not lie.
This case was several times argued in the District Court and also in this Court.
BY THE COURT. The act of Assembly establishing the courts of equity in this State is silent with respect to the mode of proceeding on rehearing; but in order to ascertain the authority they are to exercise, and the course of procedure in cases not especially provided for, a general reference is made to the former court of chancery, and to the power rightfully incident to such a court.
It would be extremely difficult to discover the rules of practice which formerly obtained here, as well from the total want of any memorials of the decisions of this Court as from the loss or dispersion of the records.
The practice in England will be found unsuited and inapplicable, in a variety of instances, to the existing constitution of our courts of equity, which have therefore been obliged to make, occasionally, such rules as were necessary toexpedite the decision of causes, the details of which the Legislature did not enter into, but left to be arranged by the courts, under the above general reference.
But the shortness of time allotted to the equity business, and the consequent accumulation of suits in many of the districts, have concurred with other causes in rendering this branch of our jurisprudence little indebted to precedents of our own, and in compelling a frequent resort to the books to ascertain the practice in correspondent cases.
Upon the question now under consideration, no aid can be derived from any former decision in our courts, and it is probable that one of the kind has not before occurred. It must therefore be decided by an inquiry into the usual course of courts of chancery and the powers and authorities rightfully incident to them.
When we consider, however, that equity is administered in England in tribunals exclusively established for that purpose, possessing a ready access to all the means of information by which the science is illustrated, by men who make it the principal business of their lives, assisted, too, in difficult cases, by the common-law judges, and from whose decision there is nevertheless an appeal, it seems obvious that whatever...
To continue reading
Request your trial