Wilcox's Executors v. M'Lain's Executors, 3 N.C. 175, 2 Hayw. 175 (1802)

April 1802 · North Carolina Superior Court

3 N.C. 175, 2 Hayw. 175

Wilcox’s Executors vs. M'Lain’s Executors.

VN 15'Sj, an order had been made, that the coaipiainanto giv® »• security for costs, or shew cause at the next term. — -And no cause having been shewn, nor the security given, it was aovtr moved that the cause be dismissed,

Mr. Williams opposed this motion,

because at the next term after this order, a scirefacias had been granted to the plaintiffs, for the defendants to shew cause why this suit should not be. carried on by the executors of Wilcox ; and no return was taken of this rule ; whence it was to be infen ed, that the cause had been shewn by them and allowed of.

Taylor, Judge»

No cause having been shewn at the next terra, the rule became absolute, and the security must be given. A rule must now be made, that the complainants shall give the security on or before the first day of next term, or the cause to Stand dismissed as of this term.

It was then moved for the defendants, that the order formerly made for opening the accounts settled by the award complained -of and stated in the bill, be set aside, unless cause be shewn to the contrary at the next term j and that there be a rule made for that purpose^ The ground of this motion was, that the complaint against the award, stated the getting to possession by Wilkerson, the testator of M’Lain, and the concealment by him from the arbitrators, of an account current belonging to Wil-'cos, which charged Wilkerson with a eonsiderabiv^sum not allowed to Wilcox by the arbitrators, owing to such concealment; It was said and read from the answer, that this allegation was not true; for that these papéis had been laid before the arbitrators : and as this, answer had never been replied to, it was to be taken as true» Notwithstanding which, the accounts ]iad been ordered to be opened, and a new account stated»

M>. Williams opposed this motion, saying, here was a decree that the account should be taken; and that a decree could not be reversed but by a bill of review.

The counsel for the defendant argued, that no bill of review would lie but on a final decree. By the Bdtigh precedents, a, petition against this.order would be the proper form of proceeding, that had pot been used in eur courts; and then there was no other mode left but by motion; and as that gave to the other side equal time to prepare for the defence, and equal notice of the point to be argued, as a petition would, it was equally pro. per for all purposes of justice as a'petition was. f

Taylqr% Judge — -A petition is the proper course ; and it has been the practice in some instances to proceed by petition. ‡ remember a case occurred at Fayetteville some years ago, where an eminent counsel was concerned, who advised that course, and ic ivas pursued.

Motion refused.