delivered the following opinion :

This was not the case of the direct removal of a final account to the Supreme Court by writ of Certiorari, in order that the proceedings of the Orphans’ Court, in relation to said account, might be reviewed and corrected as to errors of law. But the time for such review having long passed, a rule was taken on Engle, who had settled the account, to shew cause, why it should not be opened and set aside, for fraud and mistake. The Orphans’ Court afterwards discharged this rule with costs. The order and proceedings of the Orphans’ Court, refusing to open the account of Engle, were removed into the Supreme Court by Certiorari, which at September Term, 1842, reversed the said order, and remitted the record with instructions as to the restatement of the account. (4 Har. Rep. 82.) At the November Term, 1842, of the Bergen Orphans’ Court, that court having considered the case, and not being‘satisfied that the said account ought to be altered or resettled for any fraud or mistake therein, on the application of Crombie, ordered the account to be restated and confirmed in all things, as reported and allowed in 1835. This last mentioned order and decree of the Orphans’ *619Court was then removed into the Supreme Court by Certiorari, and the Supreme Court ordered the account to be restated by their own clerk. This writ of error was then brought to this court.

It seems to be quite clear that the restatement by the Supremo Court of the final account of Engle, was not authorized by the act of 22d Feb. 1843, (Pamph. 84.) That act applies to the removal by Certiorari of a decree of the Orphans’ Court, oh the final allowance or settlement of the accounts of executors, administrators, &c. JSTow the-time for Ihe removal by Certiorari of the account in question has long passed, for it was allowed and settled in 1835. The Certiorari in this case, therefore, did not bring up the final account: it brought up the order, decree and proceedings of the Orphans’ Court in 1842, when they refused to alter the account, and directed it to be restated and allowed in all things as before, not being satisfied that there was any fraud or mistake. The act authorizing the Supreme Court to restate, seems clearly to apply only to the case of final accounts reviewed by a direct proceeding, and not to the ease of an application to set aside such an account for fraud or mistake. If there was any error in law in the proceedings of the Orphans’ Court on such application, the power of the Supreme Court would be confined to a simple reversal. This point lies at the foundation of the judgment of the Supreme Court, and the error is fatal.

There is another error in the judgment of the Supreme Court; the application, was one addressed to the discretion of the Orphans’ Court. The fraud or mistake is to be proved to the satisfaction of that court. (Rev. L. 787 § 32.) The burthen of shewing fraud or mistake lies upon the exceptant, so as to make out, at least, a prima facie case; and when the Orphans’ Court have opened an account without legal proof, their proceedings have been set aside. Johnson v. Eicke, 7 Holst. 316; Hyer v. Morehouse, Spenc. 135. It is therefore a question of fact, upon which that court is to decide, according to a sound discretion, and where no question of law is raised, its decision upon the facts cannot be the subject of review on Certiorari by the Supreme Court; a view taken on this point by Justice White*620head, in the court below. But the Supreme Court went further, and assumed to do on Certiorari, that which the Orphans’ Court was not competent to do on the original application. Without any proof in regard to items, which might or might not, according to circumstances, be the proper subject of allowance, that court struck them out as fraudulent. We are all of opinion that the judgment of the Supreme Court should be reversed. It is not necessary to express any opinion upon the other points taken by the counsel of the plaintiff in error, (a)

Judgment reversed.

Cited in Eames v. Stiles, 2 Vr. 493.