
    *Legrand, Executor of Anderson, v. Francisco and Others.
    Argued Oct. 22, and
    Nov. 27th, 1811.
    I, Chancery Practice — Final Decree — Necessity of Decree Nisi. — Where a defendant in Chancery has not answered the bill, it is error to enter a final decree against him without the previous service of a decree nisi. And his appearing before commissioners appointed to take an account, or having-notice of their proceeding to take it, does not preclude him from making this objection.
    3. Same — Suit by Legatees for Division — Effect of Finaf Decree. — It seems that a final decree, in a suit by legatees, for the division of a testator’s estate, is a bar to a bill exhibited by the same persons, or their legal representatives, suggesting that the executor had kept back part of the property, but not averring that this was new matter since discovered, or that the decree was obtained by fraud.
    
    In a suit in Cumberland county Court, between James Anderson, an infant, by Charles Allen, his guardian, Peter Francisco, and Susanna, his wife, and Agnes Anderson, an infant, by William Anderson, her next friend, plaintiffs and Thomas Anderson, executor of James Anderson, deceased, defendant, for a division of the estate of the said decedent among the several legatees, according to. his will; and the plaintiffs having filed their bill, and the defendant his answer, by consent of parties, commissioners were appointed, who made a report, stating a division and allotment of the said estate, or so much thereof “as was rendered by the executor,” among the plaintiffs and the defendant; whereupon, at March Court, 1788, it was decreed and ordered, that the said division and allotment be made firm and stable between the parties, and that they pay equal proportions of the costs of suit.
    No appeal was taken; nor bill of review filed with leave of the court. Susanna, the wife of Francisco, having afterwards died, and David Malone having intermarried with Agnes Anderson, a bill was filed in the same County Court, in January, 1791, by Peter Francisco, administrator of Susanna Francisco, his late wife, James Anderson, David Malone, and Agnes his wife, against Thomas Anderson, executor of James Anderson, deceased, charging “that the said testator left on his plantation, at the time of his death, a considerable estate of personal goods and chattels, consisting of corn, wheat, oats, tobacco, horses, hogs, sheep, and stock of all kinds, with a great quantity of plantation utensils, and which came to the hands and possession of the said defendant, *and unaccounted for, by the said defendant before the commissioners, appointed by a decree of the said County Court of Cumberland, to divide the estate of the said testator, according to his last will and testament.” The plaintiff therefore prayed that a new account might be rendered of the defendant’s administration, and a final settlement and division be made, by commissioners to be appointed by the Court. But there was no averment, in this bill, that the new matter therein set forth was discovered, by the plaintiffs since the decree in March, 1788; nor that the said decree was obtained by fraud.
    The defendant not having answered, an order of account was made, without any service of a decree nisi. The defendant at first attended the Commissioners, who made a report on the 7th of May, 1800, stating a balance of 1071. 13s. 6d., due- from him to the complainants. “For reasons appearing to the Court,” this report was set aside, and another account directed to be taken by the same Commissioners. The defendant had notice, but failed to attend them, in the last instance; and in January, 1801, they made another report, whereupon it was- decreed and ordered, that the plaintiffs recover against him 1331. 7s. 4d., with interest from October, 1787, till paid, and the costs.
    From this decree the defendant appealed to the Superior Court of Chancery for the Richmond district, where (on the 7th of March, 1803,) the Court, “neither affirming nor reversing the decree at this time, referred the accounts between the parties to one of its own Commissioners, to be by him examined, stated, settled, and to the Court reported: the appellant was permitted to answer the bill of the appellees, and commissions to take depositions were awarded.” The appellant then filed an answer, in which he averred that he had gone into a settlement with the complainant, under an order of Cumberland County Court, and fully and fairly accounted for all his transactions as executor; that nothing was due *from him to the complainants; and that no allowance had ever been made him for his services as executor.
    A report was afterwards made by a commissioner, on- considering which, together with sundry examinations of witnesses, the Chancellor, (Ta3'lor,) on the 2d of May, 1807, reversed the decree of the County Court, and adjudged and decreed that Josiah Legrand, (on whose behalf, as appellant, the appeal had been revived, which abated by his death,) “out of the goods and chattels of Thomas Anderson deceased, in his hands to be administered, pay to each of the appellees 531. 4s. Id., with interest thereupon, at the rate of five per centum per annum, to be computed from the first day of November, 1803, until payment; and moreover, out of ‘the same estate in his hands to be administered, if so much thereof he hath, and if not, out of his own estate, pay to the appellees the costs by them expended, as well in prosecuting the suit in the said County Court, as in defending the said appeal.”
    From which decree Josiah Tegrand appealed.
    Leigh, for the appellant.
    The decree of the County Court was erroneous, because no day was given the defendant to show cause against it; which ought always to be done where the decree is by default,  Our act of assembly does not alter this rule. The proviso, “that the Court, for good cause shown, may allow the answer to be filed, and grant a further day for the hearing,” shows the meaning of the act to be, that the decree must not be absolute, but conditional; and such has been the constant practice of our country.
    2. The Chancellor’s decree was also erroneous. The decree of March, 1788, between the same parties, and in relation to the same subject of controversy, was a complete bar to this suit,  A bill of review might, indeed, have been resorted to for error in law, if such existed, on the face of that decree, or upon new matter since discovered.  But this was not a bill of review.
    *The Chancellor has erred, too, with respect to costs. He reversed the county Court decree, yet gave the costs of both Courts against the appellant. If the decree was irregular, the appellant ought not to pay the costs of correcting it.
    Wickham, on the same side,
    observed that the costs of the appeal ought not to have been decreed to be paid by Josiah Legrand, out of his own estate, in case that of his testator should be deficient; but out of the estate of the testator only ; because the testator, having appealed, was himself the cause of incurring those costs.
    Wirt, for the appellees.
    As to the first objection; where a defendant in a Court of equity has attended to the taking of depositions, and made objections to the Commissioner’s proceedings, he ought to be considered as a party in substance, though not in form. Thomas Anderson was permitted to file his answer, in the Superior Court of Chancery; and the whole case was referred to Master Commissioner Greenhow. He had full opportunity of de-fence before that Commissioner, and fully availed himself of it.
    Our second Bill in the County Court was in the nature of a bill of review, if one was necessary; but, in fact, such a bill was not necessary; our only object being to charge additional facts against the executor. The prior proceedings are no where pleaded in bar.
    Costs are discretionary with a Court of equity. The executor withheld the estate improperly: and, since his misconduct rendered the suit necessary, he ought to pay the costs.
    Wickham, in reply.
    The County Court decree was clearly erroneous. There was no direction that the decree nisi should be served on the party, without which, it could not, with propriety, be made absolute. The defendant’s attending the Commissioner did not preclude him *from making this objection ; as, in Blincoe v. Berkeley, (1 Call, 405,) the appearance of the adverse party, at the taking of the deposition, was held to be no •waiver of his objection that it was taken under a commission issued without notice of the intended application for it. The principle which governed that decision applies to this case. Thomas Anderson’s appearance in Court was not until after the first decree, though at the term in which it was pronounced; and then only for the purpose of appealing. It was no appearance to the cause.
    The Chancellor, upon the answer filed before him, ought to have determined whether the decree of March, 1788, was a bar or not; instead of doing which he referred the accounts again. That decree was either regular or irregular. If irregular, it could not be set aside but by appeal, writ of error, supersedeas, or bill of review. The plaintiffs should have excepted to the report of the first commissioners, if it was incomplete, if all the property was not produced to them by the executor.
    The bar relied upon in the answer is equally good as if formally pleaded. He says in the answer that he had fully and fairly settled all his accounts as executor before those commissioners.
    There are three instances in which a party may overhaul a decree: 1. For error in law apparent on its face; (which is not pretended in this case;) 2. Upon discovery of new matter; and, 3. Where the decree, was obtained by fraud; in which case there may be a quasi bill of review. But no disci very of new matter, or fraud in obtaining the decree, is suggested here. Again, a bill of review cannot be filed without leave of the court. This bill, therefore, was not a bill of review; and should have been dismissed, being barred by the decree.
    
      
      See monographic note on “Decrees” appended to-Evans v. Spurgin, tl Gratt. 615.
    
    
      
      Note. Such a bill is not a bill of review, but an original bill. See the note to Ellzey v. Lane’s executrix, 2 H. & M. 591. — Note in Original Edition.
    
    
      
       Hinde’s Ch. Pr. 488.
    
    
      
       Rev’d Code, 1st vol. p. 66, sect. 28.
    
    
      
       Coop. Eq. 269.
    
    
      
       Coop. Eq. 89.
    
    
      
       Coop. Eq. 45, 96, 98.
    
    
      
      Note. A bill to- impeach a decree for fraud in obtaining it, may be filed without leave of the Court, and is an original bill. See Coop. Eq. 96, 97; 2 P. Wins. 73, Loyd v. Mansell. See also Banks v. Anderson and others, SH. & M. '20. — Note in Original Edition.
    
   Thursday, February 13th, 1712, the president pronounced *tne opinion of the Court, that the decrees of the Superior Court of Chancery, and County Court, were both erroneous; that of the County Court, because “it was rendered against the testator of the appellant without his having answered the bill, or the nisi decree served upon him.”

Both decrees were therefore reversed, 1‘without deciding upon any other points made or occurring in this cause, and it was ordered, that the causé be remanded to the said Court of Chancery, and from thence to the County, Court, to be regularly proceeded in from the nisi decree of the said County Court, so as to let the appellant avail himself of the decree of that Court of March, 1788, in a suit between the same parties, which, as it now seems to this Court, ought to be conclusive, or to make such other defence, against the bill, as he may be advised is right and proper, in order to a final decree.” 
      
      Note. Several points were suggested in the argument, which, not being decided by the Court, are not mentioned by the reporter. — Note in Original Edition.
     