#### Bowyer, &c. v. Lewis.

Monday, November 16, 1807.

Interlocutory Decree — Appeal.*—An appeal ought not to be allowed by this Court from an order of a Superior Court of Chancery rejecting a motion to allow a bill of review, where the right of property had been decided, and a writ of habere facias pos-sessionem awarded, but an account remained to be taken, and the commissioner’s report had not come in; such decree being interlocutory only.

Bill ot Reviewt †— Distinction.‡—Note the diversity between a bill of review, and a supplemental bill, in the nature of a bill of review.

*

Interlocutory Decrees — Appeal.—In Laidley v. Merrifleld, 7 Leigh 355, Judge Cabeld said: “Laidley’s bill, called by him a bill of review, was, in fact, a supplemental bill in the nature of a bill of review, and the order or decree of the court upon it was an interlocutory order or decree, subject to the right of appeal, as any other interlocutory order or decree whatever; and the appeal from it brings up every part of the cause. As to the cases of *Bowyer v. Lewis*and Ellzey v. Lane, it is sufficient to say that they were decided before the statute allowed appeals from interlocutory decrees, and therefore do not apply."

See further, Va. Code 1887, § 3454; monographic *note*on “Appeal and Error” appended to Hill v. Salem, etc., Co., 1 Rob. 263.

The principal case was cited by Judge Tucker in Mackey v. Bell, 3 Hen. & M. 212, as one of several cases showing that the court of appeals is not so tenacious either of its jurisdiction, or even of its opinions, as to consider them, like the laws of the Medes and Persians, irrevocable and unchangeable.

Decree — When Interlocutory — When Pinal. — In this series of reports, several notes have been written showing when a decree is final, and when interlocutory. See *foot-note*to Grymes v. Pendleton, 1 Call 54; *foot-note*to Fleming v. Bolling, 8 Gratt. 293; *foot-note*to Cocke v. Gilpin, 1 Rob. 20; *foot-note*to Ryan v. McLeod, 32 Gratt. 367; monographic *note*on “Bills of Review” appended to Campbell v. Campbell, 22 Gratt. 649; monographic *note*on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.

The principal case was cited on this subject in Cocke v. Gilpin, 1 Rob. 35; Ryan v. McLeod, 32 Gratt. 380; Manion v. Fahy, 11 W. Va. 493; State v. Hays, 30 W. Va. 119, 3 S. E. Rep. 185.

†

BIIl oi Review. — On this subj ect, see monographic *note*on “Bills of Review” appended to Campbell v. Campbell, 22 Gratt. 649.

‡

Distinction. — A bill of review forms no part of the proceedings in the original cause. It is allowed only after the suit is completely ended. It differs in this from a petition for a rehearing which may be allowed before the signing and enrolling of the-decree, as it does also from a supplemental bill in the nature of a bill of review which supposes the cause to be still existing, and is received and incorporated into that cause as a part of it: and the orders upon it are taken and considered as orders, in the original pending cause. Claytor v. Anthony, 15 Gratt. 526, citing the principal case; Ellzey v. Lane, 2 Hen. & M. 589; Sheppard v. Starke, 3 Munf. 29.

Same — Final Decree Necessary. — To the point that a bill of review will not lie before a final decree is made in the cause, the principal case was cited in Ellzey v. Lane, 2 Hen. & M. 592; Nichols v. Nichols, 8 W. Va. 183; Laidley v. Merrifield, 7 Leigh 353.

A bill of review forms no part of the proceedings in the original cause, but is offered after the suit is completely ended. Keck v. Allender, 37 W. Va. 210, 16 S. E. Rep. 523, citing the principal case.

Same — Ground—Error of Law Apparent on Face of Record. — All the authorities agree that one of the causes, for which a bill of review will lie, is error of law in a final decree on the face of the proceedings. McCoy v. Allen, 16 W. Va. 734, citing the principal case, and Nichols v. Nichols, 8 W. Va. 183.

In this case, the Court requested ' that counsel would argue the preliminary question whether an appeal could be allowed by this Court from an order of a Superior Court of Chancery, rejecting a motion to allow a bill of review, where the right of property had been decided, and a writ of habere facias possessionem awarded, but an account remained to be taken, and the report of the commissioners had not come in: in short, whether an appeal would be allowed, till the decree was, in all respects, made final.

After the affirmance of the decree, in this, cause, it was certified to the Superior Court of Chancery for the Staunton District; and, upon the certificate’s being presented to-the Judge of that Court, the defendants petitioned for a bill of review, for new matter alleged to have been discovered since the rendition of the original decree in the High Court of Chancery; which motion was, overruled without *costs. The Court then proceeding to carry the decree of the High Court of Chancery into effect, as.' affirmed by this Court, awarded a writ of habere facias possessionem to the appellee, and appointed commissioners to make an inquiry and settlement of some accounts, between the parties, and subjected the property to be sold for ready money, to pay any balance which might be found due to, the appellant from the appellee.

To the order of the Superior Coifrt of Chancery overruling the appellant’s motion for a bill of review, an appeal was allowed by this Court, and a supersedeas awarded to, the writ of habere facias possessionem.

Warden contended that a bill of review would lie after a decision by this court, upon the ground of a discovery of new matter. There was a wide distinction between a bill of review for errors appearing on the face of the decree, and for - new matter discovered after the rendition of the original decree. In the former case, the whole record having been inspected by this Court, they had it in their power to judge whether the decree of the Chancellor was correct or not; but, on a bill of review brought for the discovery of new matter, this Court could not have decided upon it, because the new evidence was never submitted to the Court before. Would it be proper to put the parties to the expense of a new suit, when the object might be equally attained by a bill of review; and even if a new suit were brought, the decree might be pleaded in bar? Would it not be making a Court of Equity a Court of iniquity?

In this case the Chancellor directed a writ of habere facias possessionem, and that a settlement of some small accounts between, *247the parties should be made. The question before the Court was, whether the property belonged to the plaintiff or the defendants. Is it right that the property should be changed, while the Court is waiting to see whether a small sum of money is due or not?

In England there is no instance of a decree being considered final, or capable of being carried up to a Court of Appeals, till it is signed and enrolled. What is called a signing and enrolling there? When every thing which relates to the cause has been finished; when every account has been taken. But, in this country, when the Court of Appeals consisted of all the Judges, and the Court of Chancery of three Judges, it was customary, when the latter Court had decided the merits, to bring up the cause to the *Court of Appeals. This was done for the sake of expedition, and of justice. The Court never refused an application for an appeal, till the decision of the case of M’Call v. Peachy; when it was determined that that appeal was prematurely brought up. The consequence of which decision was, that an act of Assembly passed, which authorized the Chancellor to grant an appeal at his discretion. In all cases where the Court of Chancery allowed an appeal, this Court considered themselves as possessing jurisdiction. This decree was final so far as it respected the merits.

Bet not precedents from the English Courts be brought to bear upon the present case. Their practice is entirely different from ours. There is no danger of injustice being done there, because no proceedings can be had under the decree till it be made final.

Wickham, on the other side, said that he should proceed in the argument upon the supposition that a case had been made out which would entitle the party to a bill of review, if it had been brought at a proper time. He should not contend that a bill of review would *not*lie for new matter discovered after an affirmance of a decree by this Court. This had been decided by the Chancellor, (a) is conformable to the practice in England, and he was not prepared to controvert it. But he should contend that a bill of review will, in no case, lie till a final decree. In England, it will not lie till the parties are completely out of Court. Before that period, if new matter be discovered, the part is permitted to file a supplemental bill in the nature of a bill of review, (b)

It is understood to be admitted by Mr. Warden that the English authorities are opposed to the allowance of a bill of review before a final decree, but he supposes there is a distinction between the Courts of England and this country, because appeals are allowed here from interlocutory decrees. If this Court possessed the power of allowing such appeal, there might be some weight in the argument; but it possesses no such power; the power resides entirely in the Chancellor, who may exercise it, or not, as to him may appear right.

But it may be said, this is a mere matter of form: that although no bill of review will lie in England, yet a supplemental bill, in the nature oí a bill of review, may be brought. When the cause is at an end, and a bill of review is offered and rejected, the party, being out of Court, may appeal: but, if the bill of review be offered and received, *the defendant in the bill of review cannot appeal from that order, because it is not final.

The distinction between a bill of review and a supplemental bill in the nature of a bill of review, is this: a bill of review forms no part of the proceedings in the original cause; but is offered after the suit is completely ended; a supplemental bill in the nature of a bill of review supposes an existing cause; is received and incorporated with the papers in that cause, and may be regarded as an amended bill: all the orders taken on such bills are considered as orders in an existing cause, and the new bill and answer are part of the same cause. This order for a supplemental bill in the nature of a bill of review, is, in its own nature, interlocutor; or, if the bill be rejected, the order is nevertheless interlocutory. Suppose the Chancellor had gone on, and had decreed the property, without receiving the supplemental bill when offered, would not this Court, on an appeal, after the final decree, take notice of the rejection of the supplemental bill, as an interlocutory order in the cause? and might *not the*decree have been reversed because the supplemental bill was improperly refused?

With respect to the writ of habere facias possessionem, there can be no question but that it went to award the possession, and, not to determine the right. At the final decree, the Chancellor might have changed the possession. There were many things to be done before the decree could be made final. By the decree, Mrs. Lewis was to have an account of rents and profits; and Bowyer and others, an account of interest: she was probably put in possession to stop the interest. The practice of filing supplemental bills in the nature of bills of review is also convenient to the parties: for the Chancellor may find it necessary to change his orders; but if a bill of review be offered and rejected, it may be pleaded in bar.

Randolph, in reply. It is admitted by Mr. Wickham that a bill of review will lie after an affirmance, upon the discovery of new matter. I will concede that it will not lie for error in law. But whether, in this case, the bill was properly brought, or not, must depend on our own laws, and not the practice of the Courts of England. In England a bill of review will lie whenever an appeal may be taken; and an appeal can only be taken there after a final decree; but, in this state, as an appeal will lie from an interlocutory decree, if the merits be settled, on the same princi-pie may *a bill of review be brought in the same stage of the proceedings. According to Mr. Wickham’s doctrine, a man may have a right to property, may ultimately have a decree in his favour, and yet maj' be turned out of possession, and kept out for many years.

*248Whenever the law allowed appeals in cases where the principle of the decree was set-tied, quoad hoc the decree was final. Why then should not such a decree be considered final, as it respects the allowance of a bill of review?

The case of M’Call v. Peachy, was decided before the act passed — authorizing- the Chancellor to allow an appeal, at his discretion, from interlocutory decrees; and the decision of that case gave rise to the act. (a) But, it is said, the Chancellor is alone to judge: the answer is, that a man is to be relieved when an injury may be done; he is not. to wait till it actually occurs. Here an injury has been done. If the argument could have any force it must be applied to those cases only where the Chancellor had made no election: but in this case, an election has been made.

If it be said, that a supplemental bill, in the nature of a bill of review, may yet be received, I answer, that the Chancellor has already expressly awarded a writ of habere facias possessionem, which has had its full effect. In no other mode can the party obtain relief but by the allowance of a bill of review.

Curia advisare vult.

Wednesday, November 18. The Judges delivered their opinions.

JUDGE! TUCKEJR.

A decree of this Court affirming a decree of the High Court of Chancery, in this cause being presented to the Chancery District Court at Staunton, pursuant to the act of Assembly, 1801, c. 14, “and the same being seen and inspected,” the defendants petitioned the Court for a bill of review, for new matter alleged to have been discovered, since the rendition of the decree in the High Court of Chancery: which motion was overruled, without costs. After which, the Court proceeded to award a writ of habere facias possessionem to the appellee, and to appoint commissioners to carry the decree of the High Court of Chancery so affirmed in this Court, into effect. On the petition of the appellants to this Court, an appeal was allowed them to the order of the Court overruling their ^motion for a bill of review, and supersedeas to the execution of the writ of possession.

To decide whether the bill of review ought to have been granted at that stage of the proceedings, it may be proper to look into the nature of the decree affirmed; whether that were a final, or only an interlocutory decree.

That decree settled the subject in dispute between the parties as to the right which Mrs. Dewis had acquired to become the purchaser of the lot in question, of William Bowyer. But it proceeded further to direct an inquiry and settlement between the parties, to be made by commissioners; and a payment, under penalty of a consequent sale of the lot for ready money, to satisfy the appellant, Bowyer, for any balance that should appear due from the appellee: and the commissioners were directed to report their proceedings to the Court. Until this was done, the cause could not be said to be out of Court, and, consequently, the decree not final. It is true an appeal had been allowed in that case — but this is to be attributed to the ordinary practice, until the case of M’Call v. Peachy, (b) occasioned a solemn inquiry into the legality of that practice, and a decision against it, by the unanimous opinion of the four presiding Judges. The act of 1797, c. 5, passed soon after, allowing the High Court of Chancery, upon any interlocutory decree, where the right claimed .may have.been affirmed or disaffirmed, to grant, in its discretion, an appeal, if that Court should be of opinion that the granting such appeal would contribute to expedition, the saving of expense, the furtherance of justice, or the convenience of the parties. “The right of deciding upon such an application is exclusively confided to the discretion of the Chancellor, so long as the cause remains in his Court. ”

The authorities cited from Mitford’s Pleadings, 78 to 84, clearly shew that a bill of review, properly so called, is granted only after a final decree, either upon error in law appearing in the body of the decree itself, or upon discovery of new matter. If, then, this be a proper bill of review, predicated on the ground that a final decree had been pronounced in the cause, I think it was premature; the cause being still in Court, and subject to the Chancellor’s future direction and discretion upon every point not already decided upon by this Court upon the appeal. On the other hand, if this bill be a supplemental bill, only, in nature of a bill of review, the admission or rejection of it by the Chancellor, whether properly or *improperly decided could only be decided upon by this Court after a final decree shall be had in the cause, unless the Chancellor in his discretion had granted an appeal from the order of admission, or rejection. This he has not done; and, as this Court has no jurisdiction, but what is expressly granted to it by statute; nor can obtain it in any other mode than the statute allows, I conceive the former order of this Court granting to the appellant an appeal, and awarding a writ of supersedeas, was not authorised by any statute, and, therefore, ought to be -rescinded now, and the appeal was dismissed.

The case of M’Call v. Peachy furnished a precedent on which I rely.

JUDGEJS ROANEJ and PUEJMING were of opinion that the appeal and supersedeas were prematurely awarded: and by the whole Court, (absent JUDGEJ UYONS,) the appeal was dismissed.

(a)

 M’Call v. Graham *&*Beall, ante. p. 13.

(b)

 Mitford's Pleadings, 78 to 82, 2 Atk. 40: Lewellin v. Mack worth, Hlnde’s Practice, 60; 3 P. Wms. p. 371, Taylor v. Sharp.

(a)

 See Rev. Code, yol. 1, c. 223, p. 375.

(b)

 l vCLUi