The petition prays a revisal or re-hearing, before the judge of probate of accounts which had been previously settled by a final decree of a full county court; and from which decree no appeal was taken.

It is the unanimous opinion of the judges of the supreme court, that such a petition, for such purposes, before such a tribunal, under such circumstances, cannot be entertained; and that the order of the judge of probate, dismissing the petition, be affirmed; as that judge alone has no power to surcharge and falsify, in this way, an account settled by the county

court.

BRIEF OF R. W. WEBBER, ESQ.

In this case, R. G. Gibson and Gray Briggs, as executors of John Briggs, made a settlement with the orphans' court of Franklin county, at the July term, 1828; at the foot of which account of settlement, they made oath.— At the August term, 1828, they applied to the county and probate court of Franklin county, for the allowance of commissions, as executors, which were allowed by said court.

At the February term, 1829, of the orphans' court of the county of Franklin, the petitioner, Reuben G. Gibson, filed his petition in the orphans' court of the county of Franklin, praying for a revision of said settlement, without making either the heirs and distributees, or the creditors of John Briggs deceased, or any other persons, defendants or parties to said petition. The court refused to allow the petition; from which opinion of the court the said R. G. Gibson appealed to this court.

The counsel who represented the heirs of said John Briggs, deceased, in making said settlement, moves the court to dismiss the petition of said Gibson, upon the following grounds, to wit:

First, That the executors having made a settlement with the orphans' court, which court had full and ample original jurisdiction to make the settlement, said settlement was conclusive upon all parties, until reversed by the chancery or supreme court, by appeal; which was not done in the time allowed by law, but the decision submitted to by all parties-see revised code, page 52, section 87; page 30, section 12.

Second, That after the county and probate court had, (by allowing commissions to the executors,) ratified the decree of the orphans' court, said orphans' court could not thereafter control or interfere with said set

tlement; and this court, being merely appellate in its powers, cannot do so see acts of 1824, page 107, sections 1 and 3.

Third, That the orphans' court could. not entertain jurisdiction of the petition filed by the petitioner, without said petition making the legatees and distributees parties; and this court cannot do so by appeal, as the parties interested ought to have been made parties defendants to the petition, and thereby allowed the opportunity of disproving the statements contained in the petition..

JOHN MILES vs. THOMAS MYERS.

A demurrer to a replication, opens, to the consideration of the court, the defects in the pleas of the defendant.

A plea, alleging that the premises of the plaintiff were not inclosed by a sufficient fence, is not a good defence in an action of trespass stating that the defendant broke and entered the close of the plaintiff, and, with his oxen, &c., destroyed and carried off two hundred bushels of corn.

It is not error for the court to refnse to charge the jury upon a certain point, unless it appear by the bill of exceptions, that such point did arise in the cause.

OPINION OFTHE COURT-BY THE HON. HARRY CAGE.

This was an action of trespass. The declaration alleges that the defendant, with force and arms, broke, and entered the close of the plaintiff and with his horses, hogs, &c., broke down, destroyed and carried off two hundred bushels of Indian corn.

To this declaration, the defendant has pleaded not guilty, and a special plea. The matters of defence set up in the special plea, are:

That the trespass complained of was done with the cattle, horses, hogs, &c. of defendant; in which it is alleged that the premises in question were not inclosed by a good and sufficient fence, &c.

Upon the plea of not guilty, issue was taken. To the second plea, there was a replication; to which the defendant demurred. Upon this demurrer, the defendant's second plea was adjudged bad, and the cause went to the jury upon the plea of not guilty; whereupon the counsel for the defendant requested the court to instruct the jury upon several points set out in the bill of exceptions.

murrer.

The first point, raised for the consideration of the court is upon the deIt is not, nor will it, I presume, be denied that the demurrer to the replication authorized the court below to look into the previous pleadings, on the part of the defendant. This point conceded, the defendant's second plea was brought fairly before the court by the demurrer, when its sufficiency, or its its insufficiency became the subject of legitimate inquiry, for the court.

The declaration charges the trespass to have been committed by the defendant; and although the declaration may not be in strict technical form; yet no exceptions were taken to it. The court must, therefore, consider the declaration as charging the trespass to have been committed by the defendant, and not as a declaration where the gist of the action is trespass committed by the cattle of the defendant.

From the slightest examination of this second plea, it will be seen that it is no answer to this declaration; or, at least, to the gist of this action.— If it is an answer to any part of the declaration, it is to that part only which is laid in the declaration by way of aggravation, to wit: the damages done by cattle, &c. Upon this point, then, we are of opinion that the court below did not err in adjudging the defendant's second plea bad.

The second point, which is raised by the bill of exceptions, is, that the court erred in not instructing the jury, as requested by defendant's counsel.

It is not shown, by the bill of exceptions, that there was any evidence in the cause, out of which the legal opinions sought to be obtained from the court did arise, as the bill of exceptions does not embody a particle of evidence, if there was any given in the court below.

Under the mode of decision which is recognized by this court, as the true rule, it is not error in the court to refuse to charge; unless it is shown by the bill of exceptions, that the point did arise in the cause.

As regards the instructions that were given to the jury, as shown by the bill of exceptions, we can see no error; nor, indeed, can there be, as the instructions given embrace no legal point.

Let the judgment below be affirmed.

Caldwell for plaintiff.

Howard for defendant.

GABRIEL BURNHAM, vs. JOHN HUFFMAN. When the court are about to sign a final decree in chancery, it is too late to move to amend the

answer.

OPINION OF THE COURT-BY CHIEF JUSTICE TURNER. On motion of defendant to amend by filing a plea of trial and judg ment at law.

It appears by the bill and answer, that John Huffman brought his action at law, in the Warren circuit court, in 1820, for breach of covenant, in the sale of a slave, and recovered judgment for $450, at the September Term of said court, in 1823;

That the defendant at law, G. Burnham, filed his bill, setting forth, among other things, that the said verdict and judgment were obtained in consequence of the sickness and absence of his material witness, Henry D. Downs;

That the plaintiff at law, had no cause of action, &c., and prayed an injunction and general relief.

In this bill the defendant, Huffman, by Messrs. Whiting and Lewis, their attorneys, filed their answer, in June, 1824. A general replication was filed in December, 1824, and at the rules in May, 1825, the cause was set for hearing.

At January term, 1826, of the chancery court, the cause was argued and submitted on final hearing,-and in May 1826, a re-argument was ordered. The ca use was then continued from term to term, till June term, 1828, when the injunction was dissolved.-An appeal was taken to the supreme court, where the decree of the chancellor dissolving the injunction was reversed, at December term, 1829, and cause remanded. The cause was again set for hearing at June term, 1830; and the present chancellor having been concerned as counsel for the complainant, transferred the cause to this court.

It appears that the complainant's depositions were taken in December 1824, filed and opened in the same month, in the chancery clerk's office being three in number, and fully supporting the allegations of the bill.No depositions appear to have been taken by the defendant.

At the present term, the cause was submitted without argument, and the opinion of the court has been pronounced in favor of the complainant, decreeing a perpetual injunction; and on the complainant's counsel presenting the draft of a decree for signature, the counsel of the defendant came in, and objected thereto, and moved to amend his answer by filing a plea of the verdict and judgment at law, in bar of this suit;-which motion has been heard.

The grounds laid for this mction appear in the affidavit of A. Whiting, Esq., solicitor for defendant, who states that he was engaged in the suit at law for Huffman; that the trial was full and fair, &c.; that he drew Huffman's answer in chancery, which he believed sufficient at the time under the decisions and practice of the first chancellor, who decided it so by dissolving the injunction on final hearing; that under the late decisions of the chancery and supreme courts, the answer is defective, and not sufficient to bring before the court, a material and substantial defence to the relief claimed, viz: the benefit of the judgment at law, &c.

The complainant's counsel, N. G. Howard, shews by his affidavit, that H. Downs, the complainant's principal witness, is dead; that if he were alive, he could prove material facts by him, to shew that the judgment at law, even if pleaded and insisted on by the defendants' answer, could not avail the defendant, &c. and that the nature of the answer as filed did not render such proof necessary, at the time said Downs' deposition was taken, &c.

It is laid down in the books of chancery practice, that amendments are liberally allowed to reach the merits, and that each case must depend very much on its own circumstances, and be governed by the sound discretion of the court. But the books are not silent as to the general rules of practice, and cannot be unknown to the attentive student. It is certainly a safe and a sound rule, which requires, that applications to amend should not be delayed, but should be made at the earliest period practicable. The law abhors laches and delay, in bringing causes to issue,

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