
    BROWN vs. CROW’S heirs.
    inferior court, the decree pro-¡““need by the court or appeals and remanded to the inferior “T-t0 be„Co* Cannot after-wards be ⅛¾⅝-"d,lnt0 by the inferior court or court of 2p_ peab-
    lf fn “PF*1 be taken trom proceedings had thereon, it only-therthe'decree of the Ci’utt of feá acceding t0 its nuein- and mean*
    CROW’S heirs having the younger patent to the land in dispute, instituted a suit in chancery against Brown, to compel a conveyance of the legal title.
    The cause came by appeal into the court of appeals. t-vt i .«.i- -i -i >
    t-vt i .«.i- -i -i > In November 1801, this court pronounced, a decree principally in favor of Brown-^See Pr. Dec. 119, At a subsequent term of the court, by consent of both parties entered on record, this decree was opened; andm May 1804, a new decree was pronounced, establishing Crow’s claim; and directing, in substance, that it should be sur- , , .. V , , - ,’ , . . veyed by lines running hall. way between his improvement and the improvements of several other persons, and south, &c. — See Pr. Dec. 124. '
    
      , r . . , ,. Inis decree was sent to the interior court, with directions to carry it into effect.
    Upon executing the order of survey, it was found that Myers’s improvement (being one Crow’s entry was directedby the court to run half way to) was so far-distant fromCrow’s improvement, that lines halfway fromCrow’s improvement to the two next improvements, would intersect before Crow’s survey could reach halfway to Myers’s jpaprovement.. The surveyor, therefore,disregard'.’ d the" direction to run half way to Myers’s improvement, as impossible to be complied with.
    It is a general principle, that confent cannot give ju-riididlion. If the court once have ju-rifdiétion of a caufe, and have exercifed it fo that their power is gone, confent ¿an reftore it* Part of the decree of the court of appeals difregarded as fiirplufage. Coils fpecially adjudged*
    Brown excepted to this report of the surveyor, and the court set it aside, and directed a survey to be made by making the fialf way points between Crow’s and the other improvements the angles, instead of the side line of Crow’s survey.
    From that order and direction, an appeal, by consent, was taken by Brown, which was to be considered, if necessary, a crass appeal, by Crow’s heirs also.
    
      Clay, for the appellant (
      
      ).
    
    I contend that from the situation in which this cause now stands, the whole merits are open for adjudication, as if it never had been before this court. An interlocutory decree pronounced by a court of original jurisdiction, although it may settle every question of right between the parties; and be kept open for the purpose of completing the detail only ; is liable to be set aside by tliat court, and a decree entirely different pronounced. So long as the parties remain in court, this is the case. And nothing but the final decree of the court terminating the cause, puts an end to the power of the court over it.
    The decrees of this court, must be tested by the rules applicable to courts of original jurisdiction. When this court reverses a decree of an inferior court, it pronounces such decree as the inferior court ought to have pronounced : and when pronounced, it cannot be more binding than if it had been pronounced by the inferior court in the first instance. If this decree, entered in May 1804, had been given by the inferior court in the first instance, it would have been open to that court, until a final decree was pronounced. This court, when it pronounces, a decree, may either carry it into effect itself, or may remand it to the inferior court, for them to do it — 1 Brad»-283 ().
    Remanding the cause to the inferior court, to be carried into effect by them, is not a matter of necessity, required by law; but is simply a rule of utility, to relieve this court from the burthen of it.
    If this court had retained this cause for the purpose of-carrying it into effect, the decree would have been clearly in their power. Remanding the cause to the inferior court, to be carried into effect by them, cannot give the, decree any greater effect. The inferior court is, fpr thi% purpose, as much the ministerial officers of this court, ás a commissioner or surveyor acting under your special prder would be.
    If I am right in this-point, this court, at the May term 1804, had a right to revise their decree of November 1801, without consent; and to correct it, if erroneous. I only ask them to do the same now. But if this court has not jurisdiction to revise and correct their decrees, as I contend for, then the decree of 1804, was coram non judice ; for consent cannot give jurisdiction.
    I will admit there are cases, where courts have entertained jurisdiction by the consent of the parties ; but they have been where the parties, by the admission of facts, presented the cause to the court in a shape in which they appeared to have jurisdiction ; and the court did not inquire into the reality of that appearance. Whenever a court, not having jurisdiction, act as if they had, it is void, and will be so declared whenever it shall come under the consideration of any tribunal. It is so laid down in Dallas.
    The decree, therefore, of 1801, and not that of 1804, ought to be carried into effect.
    If the caqse is not open, as I contend for, the court must decide to what extent it is open, and how far in-quirable into.
    
      Allen and Talbot, for the appellees
    The first position contended for by Mr. Clay, would be highly inconvenient, if it were law ; but it cannot be correct. Whenever a cause is brought into this court, and youpronounce your decision on it, and send the parties out of this court, that decree is forever obligatory between them. The questions therehy decided, cannot again be inquired into by the inferior court, and this court can only review, if the cause is brought up again, what the inferior court has done, and correct any thing they may have done improperly. After the parties are once out of this court, you have no way of bringing them back. And it would be strange indeed, if the decrees of this court, were, as to their validity, to depend upon the manner of carrying them into effect. If correctly carried into effect, it has not been contended, but that they are final ; but if an irregularity or erroneous decision be given by the inferior Court, in the detail of the cause, it is to be the foundation of oyerhaling the whole. As well might it be GO»fonded,'that nfter «;q©u*t ©f original jarisdjp&n had; .entered ,a judgment ordee-ree, and the sheriff ¡or clerk committed an error in carrying it into effect ; da consequence of -which, -the parties ¡were again ¡brought before the court, by .motion, 'Of ¡by writ of error coram iidit v-thnt the court could revise and alter -the principal judg-fncpt or decree. It is true, the parties. atie An, court j but .they are -in court for other purposes¡not to ¡litigate that, Hvhioh was before decided.
    It may be admitted,, that consent cannot gi ve jurisdiction, where the court have not jurisdiction of foe - cubjeot matter. It-cannot take the court out of the cir-ftle pf ¡its .powers, as togive a court original,tihat has only appellate jurisdiction. Rut where the court have jurisdiction of the subject matter, but the mode, manner, or time of bringing the subject before them, is -all that is ¡questionable, these can be removed by consent; for - consent cunes error. You have, every ¡term, appeals be-¡ fore you, taken by consent, from interlocutory decrees..
    Here, the cause was once properly before foe court; andifoe decree of 1801, was subject to revision at that term. The time for doing this, had elapsed ; but the parties had the power, and did consent to waive the time, anfl again bring the subject before foe court. The case of Bogle & Scott vs. Fitzhugh, 2 Wash. 213, is in point.
    Rut whether this court had jurisdiction of foe cause in 1804, or not, was a subject for its decision at that time ; and whether properly or improperly decided, cannot now be questioned. This is a court -of general, jurisdictions : ¡and when a cause, not within foe jurisdiction of such a court, is brought before them, if-the exception for -want of jurisdiction, is not taken in due time, it is considered as waived, and, cannot thereafter be inquired into. The case refered tp in 'Dallas, was; a case of a court of special jurisdiction, and -not applicable to one circumscribed like foe present.
    
      May 21st.
    
    
      
      
        (a) May 19th.
      
    
    
      
      
        (b) Afts of 1796-7, P. 70, §«3-
    
   Edwards, Ch. J.

delivered the following opinion of the court: — Three questions have been made, in the argument of this cause:

Is the cause now open, as if it had never been acted, upon by the court of appeals ?

If not, -to what extent is it open ?.

Was not the exercise of jurisdiction, by foe court-of appeals, at a term ¡subsequent to -that at which the fust decree was pronounced, coram non judice ?

■. The first: question' has-been argued in die affirmative, by supposing die decree rendered by the court of apt peals betweemthe parties, and sent down to the court below, to be carried into effect, was only interlocutory, and not final. Hut' we are of opinion, it was final as to evev ry thing which was adjudged and: determined by that decree ; or, in other words, that it was fined as to the matter of right. The act of assembly,, establishing the' court of appeals, provides, that “ The court of appeals* shall, i* case oí a; partial reversal, give such judgment or decree as the inferior court ought to have given.’* And’the next clause of the act, declares, that “ On appeals, and writs of error, it shall be lawful lor the court' of appeals, to' issue execution; or remit the cause to the' inferior court, ini order that execution' may there issue ⅜ or,.that other proceedings may be had thereupon” (). These clauses, taken together, provide for two distinct cases; andtheir justexpositionwill remove all diffifculty on the subject.

The clear intention of the law, is, that where the j udgement or decree, from its nature, requires nothing further to.be done, to. effectuate it, but1 execution to bé issued? theteon,. this, court may either retain the cause, and* award, the execution themselves-, or remit the causé to' the.court: below, that execution may there be done, iff both cases the judgment or decree is equally finah

But where it is necessary, “that other proceedings” shall be had, necessary fbr, or preparatory to the complete effectuation of the judgment, before it can be car--ried into execution, it is conceived to be the duty of the-court, in all oases, to remit the cause to the inferior court for those “ other proceedings” to be there had in the' cause; such as the making of a survey; the settlement of rents;.and profits ; and other similar proceedings.

But surely the law did not intend, that in the latter description of cases; the judgment Or decree of this court, settling the matter» of right between the patties, shomldsbe!less-conclusive than in the1 formen The le* gislature foresaw, and has provided for the inconvenience that would httue’ariseiiftom: this court itself having to preside over, and settle those appendages of the right, determined by their judgment or decree; and had-wisely, refered theta to the inferior tribunes, subject to the correction of this court, as in other cases. «

A contrary construction of the law, would involve the absurdity of an appeal from the decree of the appellate tribunal, to itself ; and the still greater absurdity of the reversal of the proceedings of the inferior tribunal, because it had Obeyed the mandate of this court. If this were tolerated by the law, there would be no end to appeals and writs óf error. We are, therefore, of opinion, that this cause is not now open, as if it had never been acted upon in the court of appeals.

The second question will be considered, after the third is disposed of.

On the third question, we aré of opinion, that-the second decree made by this court, in the cause, by the consent of the was hot non coram. judicei

. It must be admitted as a general principle, that consent cannot give jurisdiction : but this principle only applies to originial jurisdiction ; or in other words; to those cases where the court never had, by laiv, jurisdiction id the case. But where the court once had jurisdiction; although the power may have been executed, so that without the consent of parties, the court, could not change their former judgment or decree, the jurisdiction may be, and in many cases has been, restored by consent. In such cases, the maxim “ consent takes away error,” applies. 2 Wash. Rep. 213, recognizes this distinction.

1 From the decision on the first and third questions, the answer to the second, clearly follows — that this cause is now open, so far only, as is necessary to ascertain whether the general court has given a proper exposition to the decree of this court, and has carried it into effect, according to its true intent and meaning.

It appears that the surveyor had returned á report tti the general court, which was excepted to, and set aside; upon a supposition that it had been executed contrary to the true meaning of the decree of this court, which had been entered upon the records of the general court : and it is alleged, that the former decree of this court, is inri practicable.

It is true, the decree appears, from the surveyor’s re-» port, not to be literally practicable, on account of Myers’s improvement being so far removed from the town spring, and improvement, that the half way line drawn between them, falls outside of the intersection of the half way line between the town, spring, and Fisher’s Spring and improvement, and the half way line between trie tpwh spring;, and Fields’s spring and improvement.

The surveyor’s report, which was excepted to, seems to us to have been executed in conformity with the true intent and meaning of the decree of this court, made the decree of the general court; and that the halfway line between the town spring and Myers’s spring, should be considered as surplusage in the decree ; in ás much as the survey is completed without it, by the intersection of the half way linés between the town spring and Fisher’s spring, and the town spring and Fields’s spring.

Wherefore, it is decreed and ordered, that the decree of the general court, giving an exposition to the former decree of this court, contrary to the foregoing opinion, and directing a survey to be made agreeably to such exposition ; and also their order setting aside the surveyor’s report, which was made and returned to the general court agreeably to the said former decree of this court, shall be, and are hereby reversed and set aside : and it is further ordered, that this cause be remanded to the said general court ; which court is directed to enter up a decree between the parties, pursuant to the said former decree of this court, according to its true intent and -meaning, as recognized and explained in the foregoing opinion : and it is further decreed and ordered, that each of the parties pay their own costs in this behalf expended. Which is ordered to be certified to said court.

Judge Bibb,

dissented as to costs, thinking that Brown, who had improperly excepted to a correct report of survey, ought to have been adjudged liable to all costs subsequent and consequent upon His exception.

Judge Trimble,

thought that as the other report established by the general courc, was niore injurious tp the appellant than the first report, JJfwa Ought not tobé made to pay costs, unless it appeared that the decree pf the general coiiyt, as' to the survey directed in their decree, was contended for by him j but- that Re should not have costs,

The other judges concurred with judge TblwBÍíú 
      
      (a) Afls of 1796-7. p- 7°, ⅜1 Brad’ 3’
     
      
      
         Objefts called for in Crow’s entity.
     