Newhanover County NcArchives Court.....Garrett Goodloe, R. Stallings V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 27, 2009, 5:24 pm

Source: Nc Reports
Written: 1819

The Administrator of R. Stallings v. the Executors of Garrett Goodloe, and the 
Executors of Garrett Goodloe v. the administrator of R. Stallings

From New Hanover

May Term 1819

Rules concerning bills of review. It is provided by the third of Lord Bacon's 
Ordinances, that no bill of review shall be admitted, or any other new bill to 
change matter decreed, except the decree he first obeyed and performed: as if 
it be for land, that the possession be yielded; if it be for money, that the 
money be paid; if it be for evidences, that they be brought in: and so in 
other cases which stand upon the strength of the decree alone. 

His fourth ordinance provides that if any act be decreed to be done, which 
extinguishes the party's right at the common law, as making an assurance or 
relief, acknowledging satisfaction, cancelling bonds or evidences, and the 
like, those parts of the decree are to be spared until the bill of review be 
determined: but such sparing is to be warranted by public order made in Court.

Peculiar circumstances have induced the Court to make exceptions to the rigid 
enforcement of the third ordinance: as,

1. Where the party would swear that he was unable to perform the decree, and 
submit to lie in prison until the matter was determined on the bill of review.

2. Where the party had been in prison for twenty years, and swore that he was 
not worth forty pounds sterling, besides the matter in question, he was 
allowed to bring a bill of review, without paying the costs decreed in the 
original case.

3. Where a large sum of money was decreed to be paid, the Court permitted the 
party to bring a bill of review on giving good security to perform the former 
decree.

Thus far the Courts have gone in England. In this State, a party has been 
allowed to bring a bill of review upon its being shown to the Court that he 
was insolvent.

The Courts here will adopt the mild rule, where the party is able to perform 
the decree, of permitting him to bring a bill of review upon his making secure 
the party who obtained the decree. This rule will best comport with the 
condition of our country and our mode of doing business in Courts of Equity.

The facts in this case are set forth in the following opinion of the Court.

Taylor, Chief Justice: The two cases between these parties are branches of the 
same transaction, of which I have endeavored to form a connected view by 
looking into the whole of the record, and extracting from it a statement upon 
which the judgment of the Court must he given.

Garrett Goodloe was appointed guardian to Riddick Stallings, a minor, who died 
soon after he came of age, when Shadrach Stallings administered upon his 
estate, and petitioned against the executors of Garrett for an account and 
settlement of the guardianship, about sixteen years ago. The executors 
answered. A reference was made to the Master, whose report was set aside, a 
second reference was made and, no exceptions being taken to the report, a 
decree was made conformably to it at October term, 1814, for the sum of $1,209.

The executors then obtained an injunction, which was dissolved on the coming 
in of the answer, in the Court of Equity for New Hanover, and the decree of 
dissolution was afterwards confirmed in this Court. The executors in April, 
1817, filed a petition to review the decree, to which the administrator of 
Riddick Stallings pleaded, that the decree had not heen performed; and that 
case, upon the sufficiency of the plea, was transmitted to this Court, and is 
one of the two cases now pending here between the parties.

In the meantime, execution issued against the executors, who, in March, 1818,  
obtained a supersedeas from a Judge, upon an affidavit which stated, in 
substance, the same facts which formed the ground of the petition to review. 
Shadrach Stallings, the administrator, met this with a counter affidavit, and 
a motion to dismiss the supersedeas: or if it should he continued, an order 
that the executor should give security for the payment of the judgment, or 
that the property levied upon should be forthcoming in the event of the 
supersedeas being dismissed. The motion to dismiss the supersedeas, and for 
the security, was directed to be sent here; and that forms the second case.

There is nominally a third case on the docket between the parties; but it is 
in reality a part of the first, being on assignment of the errors on which the 
executors allege the decree ought to he reversed.

It appears to me that a decision on the plea must unavoidably decide the 
question on the supersedeas; for if the plea be sustained, the amount of the 
decree must be paid by the executors, and the administrator is entitled to the 
effect of his execution. On the contrary, if the plea be overruled, the 
supersedeas must be continued; in which event, it will be necessary to dispose 
of the other motion made by the administrator in relation to security. I shall 
therefore proceed to consider the plea.

The jurisdiction concerning orphans' estates was vested in the County and 
Superior Courts, to avoid the delay and expense incident to an application to 
the Court of Chancery, which was then held in one place only by the Governor 
and Council. But it is evident from the law introducing this change, that the 
power of the County and Superior Courts was intended to be concurrent with 
that of the Chancery, the forms of practice in which were to be observed in 
all cases where no change was made by the act. This appears from the preamble 
of the act of 1762, ch. 6, from the 23rd and 24th sections, and from its 
general scope.

In the third of Lord Bacon's ordinances (2 Bac. Works, 239), which were made 
nearly two hundred years ago, it is provided that no bill of review should be 
admitted, or any other new bill to change matter decreed, except the decree be 
first obeyed and performed; as, if it be for land, that the possession be 
yielded; if it be for money, that money be paid: if it be for evidences, that 
the evidences be brought in; and so in other cases which stand upon the 
strength of the decree alone. The fourth ordinance makes an exception of those 
acts which extinguish a party's rights at common law; such as making an 
assurance, or release, or the like: these are to be stayed till the hearing.

It has been said by Lord Hardwicke (3 Atk., 35) that these rules have never 
been departed from: But in Williams v. Mellish, 1 Vern. 117, the proceedings 
were offered to be stayed on a bill of review, if the Plaintiff would swear 
that he was unable to perform the decree, and would lie in prison till the 
matter was determined on the bill of review. And in a subsequent case, the 
Plaintiff was allowed to bring a bill of review, without paying the costs of 
the original cause, upon making oath he was not worth 40£ besides the matter 
in question. Id. 264. In Levil v. Darcy, 1 Chan.  Cas. 42, the rule of Court 
was pleaded to a bill of review, that the Plaintiff ought first to have 
brought the money into Court; but the Court said they would dispense with the 
rule upon his giving good security. These cases seem to shew the present 
practice in the Court of Chancery in England, and it follows from them, that 
the rule may be dispensed with under the circumstances of each case; that the 
decree must either be performed, security given for its performance, or the 
party must swear he is unable to do either, and surrender himself to jail till 
the bill of review be determined. But I am inclined to think, that an order 
for security is made only under peculiar circumstances, as it is not noticed 
as a distinct exception to the rule in the modern books of practice; and in 
the only case where I can find it was made the decree was for a large sum of 
money.

It is not easy to say what the practice has been in this State; from the 
imperfect organization of the Equity Courts, they can scarcely be said to have 
acquired any fixed and stable rule of practice. In Spiller's case, a motion to 
suspend the proceedings in an original cause was made, on filing a bill of 
review but overruled by the Court, who admitted the rule as it is transmitted 
by Lord Bacon; and this decision was subsequently recognized in the case of 
Kennon v. Williamson. 2 N. C. 350. In the case of Pannell and Wife v. Taylor 
decided in this Court, the party was allowed to proceed with a bill of review, 
upon its being shewn that he was insolvent. The rule which shall be 
established in this case, will probably regulate the practice in future; and 
upon a consideration of the state of society among us, and the mode of 
transacting affairs influenced more by the periodical returns of agricultural 
gain, than the constant circulation of commercial profit; the hasty manner in 
which Equity business has been done; and the genius of our government, which 
should oppose no harsh, and frequently insuperable obstacles to the 
administration of justice, I am disposed to think the milder rule will be the 
most just one; and that if the party obtaining the decree is rendered secure 
in the event, of a dismission of the bill of review, the inconvenience will be 
small, compared with that which will flow from the denial of justice, which a 
rigorous exaction of the money will in many cases occasion. It will correspond 
too with the ordinary practice in writs of error and appeals, and all other 
means by which errors of fact or law are reviewed. 

I am, therefore, of opinion, that upon the executors of Garrett Goodloe giving 
bond with security, conditioned to prosecute the bill of review, they may 
proceed with it, in the discretion of the presiding Judge: and that the plea 
in this case be overruled, but without costs: that the supersedeas be 
continued until the next term of New Hanover Superior Court, when it ought to 
be dismissed.

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