Opinion
(December Term, 1841.)
Where there was a bill for an account against two, and a judgment pro confesso as to one, and in the course of the proceedings an order was entered that an account should be taken as to the latter "without prejudice," and an account was accordingly taken, and exceptions filed thereto: Held, that this order was contrary to the course of the court, and not an adjudication of the court, but entered by consent of the parties to speed the cause without doing injustice; and where it seemed that justice could not be done, unless the account was taken as to all the parties, the account taken under this order was set aside in toto and a new reference made as to all the matters of account prayed for in the bill.
THIS was a case removed to the Supreme Court from the Court of Equity of MOORE, at Fall Term, 1841, on affidavit of one of the parties.
The proceedings and facts upon which the opinion of the Supreme Court is founded are set forth in the opinion of the Court.
Badger for plaintiff.
Winston Mendenhall for defendants.
This bill was filed by the plaintiff, who had formerly resided in this State and afterwards removed to Scotland, against McBryde and Jones, to have an account of the agency of William Martin, deceased, their testator, who, upon the plaintiff's removal, had been constituted a general attorney for the collection of his debts and transaction of his business in this State, and also an account of their own agency as (53) the plaintiff's attorneys in fact since the death of the testator. Jones, not residing within the State, was not served with a subpoena, but was made a party defendant by publication, and the bill as to him has been taken pro confesso. McBryde answered the bill, and the cause is now brought on to be heard. It is not questioned but that sufficient matter is stated in the bill to render this a fit case for an account. McBryde's answer contains no matter to bar an account, and Jones did not resist it. The account, therefore, must be taken as prayed.
In the course of the proceedings below an order was entered declared to be "without prejudice" for the taking of an account against Jones only. Such an account has been taken and several exceptions made thereunto on the part of Jones. It is prayed on the part of the plaintiff to hear the cause against this defendant upon these exceptions. The order under which this account was taken is contrary to the course of the court, and not regarded as an adjudication of the court, but is viewed as a mere consent rule of the parties for speeding the cause, if it may be thus speeded without doing injustice. See McLin v. McNamara, 21 N.C. 408. In this case we are satisfied that justice cannot be done except by taking the accounts in the regular way, according to the course of the court, so that all the parties may be actors therein and it may be conclusively ascertained what is the true state of the accounts between the parties respectively.
The Court therefore sets aside in toto the account reported and directs a reference for taking all the matters of account prayed for in the bill.
Ordered accordingly.
PER CURIAM.
Cited: Attorney-General v. Carver, 34 N.C. 235.
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