
    Haskell et al. v. Raoul et ux. Executor and Executrix of Paul Thomson, who was Executor of Colonel Thomson.
    When a Mlof entertained,
    ^he bill was filed in this case by creditors, for payment of their demands out of the estate of Colonel Thomson.
    
    Major Haskell’s demand was on a covenant of warranty in a conveyance of Colonel Thomson, dated 11th of May 1793, by which, in consideration of £2,200, he conveyed to Major Haskell five tracts of land on High-hill Creek, containing 1240 acres, and known as Mount Thomson. Before the date of this deed, viz. 10th oí May 1786, Colonel Thomson had mortgaged three of these tracts to the commissioners of the Paper Medium Loan Office, to secure the payment of a bond of him, the said Colonel Thomson. William R. Thomson and Derrill Hart conditioned for £750. On the 30th of March 1814 the three tracts mortgaged to the Loan Office were sold, under the mortgage, to satisfy the balance of the bond.
    1825.
    
      Columbia
    
    
      Fisher and Edwards were bond creditors of Colonel Thomson, and assigned their bond to Bourdieu, Chollet and Bourdieu, complainants in the bill.
    Another party to the bill, Colonel Cochran, claimed a balance due him for his services, as an assignee of Colonel Thomson, in settling his affairs. Major Haskell c.laimed a small balance in the same right. As this claim had been disposed of and was now abandoned, it is unnecessary to go into the particulars of it.
    The defendants relied on length of time as presumption of satisfaction. They contended also, by their answer, that the estate of Colonel Thomson had been settled by Paul Thomson, and the residue paid over to the legatees. Against the demand of Major Haskell they relied on the fact, that before the date of his deed, the same plantation, with other property, had been conveyed to him and two other trustees (Colonel. Cochran and J. P. Thomson) in trust to pay Colonel Thomson's debts; and contended, that the conveyance afterwards of the same plantation to him was fraudulent and void. They contended also, that he took the plantation subject to the mortgage.
    At the hearing, the conveyance of Mount Thomson and the covenant of warranty were proved; alsó the sale of the same plantation by the state, under Colonel Thom
      
      son’s mortgage. It was further proved, that the interest on ioan 0fgce debt bad been regularly paid by John NcmíZ Thomson since his father’s death. That Colonel Thomson died in 1796 possessed of a great estate. That John Paul Thomson was his principal legatee and executor. That he made a contract with the residuary legatees, and purchased their shares-; by which means he became sole. owner of the testator’s estate, except some pine barren land, which was to be divided among the legatees according to the agreement between them and Mr Thomson. By his will J. P. Thomson, in 1812, devised his estate to his widow and executrix, who paid the interest on the Loan Office debt for one year, and intermarried with Dr Raoul, who refused to pay further, and in consequence the plantation was sold, as already stated.
    In support of the claim of the assignees, théy produced the deed of assignment, and gave evidence of the trustees’ acts and .of a statement signed by J. P. Thomson in 1797, stating the amount due the assignees for their services at £.743; and proof that J. P. Thomson received towards that sum £236, while Major Haskell received only £197, and Colonel Cochran £100. Evidence was also given that £720 came to the hands of J. P. Thomson in 1794, for which he did not account to the other assignees. But the defendants here proved, that there was a final settlement between the assignees in 1797 and mutual releases.
    
      Fisher and Edwards’ bond, and the assignment to Bourdieu, were regularly proved, and that in 1810 or 1811 J. P. Thomson acknowledged this debt and promised to pay it.
    The decree rejected the claim of the trustees, and ordered the land sold, which, by the agreement between J. P. Thomson and the legatees of Colonel Thomson, was to be divided among those legatees. The sale was ordered to raise money to pay Bourdieu.
    
    
      As to Major Haskell's demand, the Judge directed the bill to be amended, so as to make the co-obligors in the Loan Office bond defendants.
    From this decree all parties appealed to the late Court of Appeals in Equity, and the Court of Appeals, after hearing the case, by their decree of 17th December 1822, declared, that the debt of Bourdieu should be satisfied, and rescinded the order to amend the bill. But in lieu of amending the bill, declared Haskell and Cochran accountable for the moneys they received in 1797 for their services, and interest from that time. Declared Raoul to be accountable as the representatives of J. P. Thomson for the sum he received, deducting what he might have paid towards Colonel Thomson's debts, and if this fund should not be sufficient to pay Bourdieu and Major Has-kell, then the deficiency should be paid by the defendants out of Colonel Thomson's estate; and ordered a reference on these points.
    Mr Jones, Commissioner at Orangeburg, by his report dated the 19th of February 1824, found the amount then dueBourdieu $2,511.85. To Major Haskell ,f4,012.77. And the amount of principal and interest on the sum received by Major Haskell in 1797, for his compensation as an assignee, ‡2,423. The amount on the sum received by Colonel Cochran ‡1,242.57.
    In January 1825 the cause was heard by Chancellor Thompson on the report and exceptions, who made the following order: “It is ordered and decreed, that the report of the Commissioner relative to the matters of account be confirmed. The other parts of the case have been already adjudicated.”
    From this decree the complainants now appealed to this Court, established in December 1824, and moved to have the decree enlarged and modified, for the following among other reasons.
    1. That the decree left every thing at large; without determining the sums to be paid, or the parties who were to pay or the parties to whom payment was to be made.
    2. Major Haskell and Col. Cochran submitted that the decree of the Court of Appeals was interlocutory only, and still under the control of this Court. But as the same could not be acted on without giving to Bourdieu an execution against his co-plaintiffs, and to Haskell, also, an execution against his co-plaintiff, which was unprecedented, the Court should now make a final decree and reject so much of the decree of the Court of Appeals as was repugnant, and order the debts that have been proved, paid out of the estate of Col. Thomson.
    
    But should the Court be of opinion not to grant such an order for payment out of the estate of Col. Thomson, they prayed that a rehearing might be granted them, on the following grounds:
    
      First. That the decree in the points complained of, viz. in the declaration that Haskell and Cochran were accountable- for the sums they received, for their services,^, was extra-judicial; as being made on matters not in issue.
    
      Second. That it was unjust; because Major Haskell and Col. Cochran never were heard against the claim for the sums received by them in 1797, nor ever heard of such a claim before the decree was pronounced.
    
      Third. That it was erroneous, because it was legal for them, with the consent of those concerned, to receive the money; and even if it had not been legal, the defendants or representatives of J. P. Thomson could nett complaljk-as he was a party to the act, and, whoever might ha*<^ been injured he was not injured by it. And even if the-' act was not legal, and if in fact John P. Thomson had been injured, the defendants could not have such a claim at this day, because their testator confirmed this act by acquiescence of almost twenty years, by his solemn deed and by many other acts of confirmation.
    Lastly, by rehearing the case the interests of all parties would be promoted, and would render a bill of review unnecessary, which would otherwise lie in favour of the residuary legatees, whose land had been sold, inasmuch as they were not parties to this suit, and had a right to contest the decree by a bill in nature of a bill of review.
    The complainants for the foregoing reasons prayed that the cause might be reheard, and that the same might be taken as a part of their petition.
    
      Petigru, for the appellants,
    cited 4 Johns. Cha. Rep. 819. A person ftiay go into a Court of Equity when he wants a discovery of assets, and relief is incident to discovery. The question of commissions was not in issue. One complainant cannot have a decree against another. The rights of a plaintiff are to be protected by his oath. 6 Yes. 174. 7 Wheat. 52S. 2 Atk. 333. Mitford, 77, 78. 3 Mad. Rep. 174. 452. 474. Trustees are entitled to commissions by the act of assembly. Public Laws, 202. The cestui que trust may, if he pleases, allow commissions, and Paul Thompson has done so. Granting a rehearing is in the sound discretion of the Court. 1 Johns. Cha. Rep. 48. 2 Johns. Cha. Rep. 317. Mad. Chan. 483, 484. 3 P. Wms, 442. Har. 622. 624. 2 Atk. 384. A decree to refer matters to the Commissioner for his report is only an interlocutory decree. 10 Yes. 34. 1 Munf. Rep. 507. Gilb. For. Roman. 182. 2 Cranch, 33. The object of the appeal is to render a rehearing unnecessary. 9 Wheat. 859. 16 Johns. 415. 2 Atk. Rep. 439. Courts will sometimes not enforce a decree. Mitford,'87.
    
      Harper, contra,
    cited Dormer v. Fortescue, 2 Atk. 282. A decree is considered final which settles any principle except equities reserved. A decree at the Rolls confirmed shall not be reheard. 2 Mad. Ch. 371, 413. 423. 3 Desaus. Rep. 536. Miffe v. Murray, 2 59. Defendant may have a decree without a cross bill. 2 Mad. 327. 13 Yes. 546. 15 Yes. 525. If one trustee permit another to waste the property, they shall both be liable. 3 Bro. C. C. 112. 7 Ves. 186. 2 Bro. C. C. 114. 9 Ves. 103.'
    A Chancellor “olre”'o. ofthedeCree Court.Appeal
   Cuma, per

Colcock, J.

From the view which is presented to us of this case, we are first to determine, whether there are any grounds for an appeal from the late decree of Chancellor Thompson, at the sitting in Orange-burg, in January 1825. '

It appears that this case was first heard by Chancellor Galliabd, in September 1822, who made a decree thereon, from which decree an appeal was taken to the Court of Appeals in Equity, at their sitting in December 1822, which Court entered into the consideration of all the matters and things presented by the pleadings of the parties, and made a full and final decree thereon, referring it to the Commissioner to ascertain the amount of the demands of the complainants, and the amount of the commissions received by the trustees of Colonel William Thomson for their services, which commissions were to be refunded by them, and to constitute a fund, so far as it would go, out of which to pay the complainant’s demands : ordering and decreeing that the said' demands should be paid, so soon as. the Commissioner’s report was confirmed. At the last sitting of the Court of Equity, at Orangeburg, this report was made. No exceptions to it were taken; and the Chancellor proceeded to order and decree a confirmation of the said report; observing “that the other parts of the case had been adjudicated.” No arguments were used, nor authority adduced, to shew that the Chancellor had the power to enlarge or modify the decree made by the Appeal Court. Nor indeed can any conce‘ved; for, if he had the power to alter, in the smallest particular, the decree, the same power .would have authorized him to reverse it entirely; which would involve a manifest absurdity. The Chancellor, under the circumstances, could have made no other decree than that that which he has made; and had no power, if it had been necessary, to alter the decree of the Appeal Court. This appeal is therefore dismissed.

Bills of re-Xco* very of new haTcomefe?1 íh? kno5: ledffe ot tile party after the of the^auseT' ?nd for error jq tli© decree itself, being a.Mil of review will lie in England, of the House6 of Lords.

The next subject for the consideration of the Court is, whether the petition for a bill of review shall be granted? And had it been as well understood at the commencement, as it was at the conclusion, of the argument that this application had been rejected by the Court of Appeals of Equity, the argument would not have been heard. But it was contended that the motion was not refused, because argument was not heard on the application for the bill of review. A refusal to hear the argument was a refusal to grant the motion: so the Court refused to hear the argument, because they had solemnly determined the point in the case of Burn v. Poaug, 3 Desaus. Rep. 610. But, in effect, argument was heard, as will appear by a reference to the case in the Constitutional Reports, Tread. Ed. On the argument of the motion to be heard, the counsel went into all the grounds which have now been presented. This Court consider the point as settled, and have no disposition to disturb the decision, being well satisfied that it is a judicious decision, and in furtherance of the views of the legislature, in the organization of that Court, and well calculated to remove some of the most serious and well founded obiec- ■ *■* tions to the exercise of the Chancery jurisdiction. In England bills of review are granted for two causes — 1st. The discovery of new matter, which had come to the " knowledge of the party, after the determination of the cause. 2d. For error in the decree itself, which must be error in law. And it is, at least, doubtful in Eng- ° land, whether a bill of review would be granted, after an affirmance of a decree by the House of Lords. It is certainly the usual course of the Court to refuse them.

Bills of review, it seems, will lie in this slate for the same causes that they are allowed in England.

While it is of the utmost importance that proper tribunals of justice should be established in every well regulated community for the determination of the rights of its citizens, it is of still greater importance that a speedy determination.of those rights should be had. The delay of justice is often a denial and, in some cases, worse than a denial of justice. Interest reipublicee ut sit finis Utium has grown into a maxim; and in the frequent discussions which have taken place, as well in this state as elsewhere, on the propriety or necessity of this jurisdiction, it has always been urged as one objection to it, that it is attended with enormous expenses and great delay. And why, it might be asked, should greater opportunities be offered to parties litigant in this Court to prosecute their rights than are offered to them in other Courts *? The manner of conducting the business of the Court by reference to the subordinate officers of the Court affords facilities not to be met with in other Courts; and as to the determination of principles, why should more time be allowed in one Court than in another. An appeal in England being attended with an expense which few can bear, a rehearing or review may be necessary. But here the Court of Appeals is accessible to all and, in the exercise of its legitimate powers, can and does answer all the beneficial purposes which can arise from bills of review for error in the decree; for we are not to be understood as saying that a bill of review for newly discovered evidence (subject to all the conditions and regulations prescribed on those occasions) may not be granted; as, it appears, was done by the Court of Appeals of Equity in the case of Lang and Perkins .

A further view of the subject was presented to the Court by the counsel for the appellants. He contended that although a bill of review may not be had in the case of a final decree by the Court of Appeals of Equity, yet that this was only an interlocutory decree, and consequently subject to review. A brief review of the matter submitted to the Court, and their decree, will shew that the decree is final.

But it is not necessary to determine this point more than any other in the casej for the whole matter was before the Court of Appeals as before observed, and the motion was refused by them, which is enough for this Court. I cannot forbear, however, a single remark on the authorities referred to by the counsel in support of his position. The first case, Smith v. Eyles, 2 Atk. Rep. 384, was an attempt to make a decree to account so bu final as to take preference to a judgment. The mar-§inal note is> “ a decree quod computet makes no variation as to an executor; for before a final decree he may confess judgment, and it does not at all alter the nature Qf die demand.” In the argument of the counsel, it is put on the footing of a mutual account between the parties; and so the Chancellor considers it. He begins by saying “ he thought the question settled, but that he finds ingenious men make distinctions, where the thing itself will not admit, of them.” And he.concludes that, in such-cases of account, the words that “ each party do pay” do amount to a final decree; but have been properly compared to interlocutory judgments. - The next is the of Perry and Philips, 10 Yes. 34, (which was a'reference of mutual accounts) is not final. And in that case the Chancellor also puts it on that footing; and the counsel Mr Romilly properly observes, that execution could not be taken out without some, further order. Now in this case, there is nothing to prevent the parties from taking out their executions for the amount of their demands, as ascertained by the Commissioner, against the property pointed out as liable for them.

A decretal tion may be

The motion is dismissed. 
      
      
        Perkins v. Lang, ( Columbia, 12 December 1818.)
      Chancellor Galliard. “ This case brings before the Court the question whether, under our present system, a Bill of review will lie ? The act of 1808 declares that the decrees of the Court of Appeals shall be final and conclusive, and it would be manifestly contrary to its intention to allow bills of review for error on the face of them; and it would also involve this inconsistency, that after a case has been solemnly determined by this Court in the last resort, a single Judge on the Circuit might cause this decision to be again brought into question. This cannot be. The Court, on a former occasion, has said that, on fresh application, it would correct any gross errors or mistakes in a decree, obvious on a mere statement, when the correction can be made consistently with the principles of the decree itself. Under our former equity system bills of review lay.. The act of 1808 is silent respecting them, and there is nothing either in its words or spirit to deprive this Court of its power to grant them, on the discovery of new matter, made since the decree, which matter the party applying for the bill could not ha ve the benefit of in the first instance; making a. new case, and one proper for equity jurisdiction. The application in this case is of this description; and I think the Circuit Judge was right in over ruling the demurrer. It is therefore ordered and adjudged that the decree of the Circuit Court be affirmed.
      “ Chancellors De Saussure, Waties and James concurred.”
      In a subsequent cáse Ex parte John R. Murrell, Mr Green of Georgetown presented a petition to the late Appeal Court in Equity at Columbia, May Term 1824, for leave to filejybill of review. I find the following entry on the docket by the Court: “"The petition neither granted nor refused; but Mr Green left to pursue his own course by bill of review in the Circuit Court.”
     