Opinion
July Term, 1818.
IN EQUITY.
The only modes pointed out by law for transmitting cases to this Court are by appeal, or by order of the presiding judge because he doubts on certain points. When, therefore, the parties by consent make points in a case, without the authority of the court, and transmit them for decision, the case comes through no legitimate channel, and the Court will send it back.
THIS case was before the Court, 4 N.C. 700, and it appears from the statement sent up that on motion below that a decree be pronounced pursuant to the certificate sent down before in this cause, defendant prayed that the cause should be remanded to the Supreme Court for their opinion on the following points:
From Craven.
1. Whether the trust expressed in the deed of Wilson Blount be not void in its creation.
2. Whether the heirs of Edward Kean can be required to make the conveyance demanded by complainant, inasmuch as the said deed, in terms, binds only the said Kean, his executors, administrators and assigns to make the conveyance.
The presiding judge, having declined giving any opinion in the case when in the Supreme Court before, from reasons founded on his peculiar situation, and yet retaining all their force, directed a decree to be entered pursuant to the certificate sent from this Court, subject to the opinion of the Supreme Court whether the foregoing points shall be made for their consideration.
This case, some time ago, was sent to this Court for its opinion on certain questions therein made, by the judge who then presided in the court below. The questions have been decided by this Court, and sent back, in order that that court should make a decree in the case. At the ensuing term (383) the presiding judge was so situated that he could give no opinion in the case. The parties, by their own consent, rather than by any authority from him, have made other points in the case, and transmitted them here for our opinion. It results that the case has now come here, through no legitimate channel — not by way of appeal, nor by order of the presiding judge because he doubts upon those points, which are the only ways pointed out by law in which cases can be transferred to the Supreme Court from the Superior Courts. I am, therefore, of opinion that the case must be sent back to await such order or decree as the next presiding judge shall think proper to make therein.
I am of opinion that the defendant is not precluded from insisting on anything which he has a right to do, according to the rules of a court of equity, except such as have been decided by this Court. And as this Court can take no jurisdiction but on the points submitted to it, it follows that none others can be judicially decided. It is impossible to give a direct answer to the questions now submitted, as it does not appear by the case what was submitted in the former case.
DANIEL and RUFFIN, JJ., concurred.