The hearing of this case took place at the Special Term of Granville Superior Court in July, 1871, and from "the -decision -of his Honor, in open Court, the *477counsel on each side being present, a general appeal, without objection on the part of the Court or counsel for the-, plaintiff, was taken to the Supreme Court, and the case has been pending in this Court up to this time. This was an old equity suit, which was to be proceeded with up to the; final decree, according to the practice in use at the time of the adoption of the new Constitution and the C. C. P.
By that practice his Honor must have decided the fact»? as well as the law, unless there was such a conflict of testimony, that he deemed it expedient to order issues to be; submitted to the jury, for the purpose of enlightning his; conscience, upon the disputed facts. And from the decision of his Honor in the Court below, either party had by law the right to have the cause heard de novo in this Court, unprejudiced by the decision below; and this raises the question as to the legal effect of an agreement of the parties, that the decision should be final and conclusive upon the facts, and deprive the parties of their right of appeal and review in this Court.
This Court holds that such an agreement, if established beyond a doubt, would not and could not deprive the par-r ties of the right the law, as it then stood, gave to them, to appeal to this Court and here have the whole case heard de novo. This is settled by the case of Fagan v. Jacoclcs, 4 Dev. 263.- That was a case at law, and the parties had agreed that the cause might be decided upon the same principles as though it was pending in a Court of Equity. His Honor, the late Judge Gaston, in delivering the opinion of the Court, says: “We do not conceive that this agreement of the parties could bestow upon the Court an authority to decide the case by any other principles than those which the law prescribes for its decision.”
Suppose a defendant was on trial for murder or other ■ crime, and his counsel should be so unmindful of his duty as, with the approbation of his client, to enter into a solemn. *478agreement that his Honor should try the case, and that his decision should be final and conclusive. Would any counsel attempt to maintain in this Court, when the defendant had taken an appeal, that we must refuse to hear his case •and dismiss his appeal? In the case now before the Court we are of opinion that the amendment of the record can have no such effect as to deprive the defendant of having his cause heard de novo in this Court, upon both the facts and the law, even if the objection had been taken in apt time. But the Court is further of opinion that it was too late to take any such objection as to a hearing in this Court, • after the cause had pended in this Court, since July, 1871; and after this Court had, at a previous term, ordered issues of fact to be made up and tried at the Court below.
As to the amendment of the record, it has already been settled in this Court that as our Superior Courts, as now constitued, are always open for the transaction of business, his Honor had a right to hear and determine upon the question of amending the record, at chambers, as well as in term time. Mason v. Miles, 63 N. C. Rep. 564.
• Upon affidavit filed, it is ordered that the issues be sent to the Superior Court of Franklin, there to be tried by a jury. No costs allowed.
Order accordingly.