#### Francis Johnson, ads. Edward Britton, and Wife.

Whilst any part of a cause remains in Court, the Court will review its own decrees on a proper shewing, by a *re-hearings*according to the English practice.

A party is not bound to appeal from an interlocutory decree on the merits, but may wait for the final decree; and then on an appeal from that, all interlocutory decrees affecting the merits, are open for examination.

But where there has been an appeal from one part of a decree, there cannot, upon a further peoceeding being had, be another appeal from a different part of the same decree.

An absolute or final order is such as when once given, nothing more remains to be done.

*Tried, before his Honor Chancellor JOHNS TON, at Marion.*

This was an appeal from a part of a decree made by Chancellor Johnston in 1S35, and which may be found reported in 2nd Hill, Ch. 434. That part now appealed from, was as follows:

“The second question is, whether the complainants have aright to set aside the purchases of certain slaves made by Francis Johnson, the executor-, at his own sale.

It appears by his answer, he made the sale under the order of the ordinary; that he appointed one agent to sell, and another to buy for him. These circumstances he states as reasons for confirming his purchases; but if the doctrine, that a trustee to sell cannot purchase, were at all questionable, I should hold the circumstances relied on as going very far to condemn the sale.

There is a trustee blinding the bidders, by employing a by-bidder, and having such a control of the auctioneer’s hammer, that he can bring it down instantaneously, whenever he thinks fit. And shall such machinery sanctify what the law would otherwise condemn?

But that such purchases are clearly illegal, is too well settled to admit of doubt. I have expressed my opinion briefly in Wiggins’ case, and in the case of Crispin against Taylor; in both of which the Court of Appeals concurred with me.

In the last mentioned case, the very question was decided which was made here. It was ruled that the trustee being a *co-cestui qua trust,*gives him no right to buy from himself. The ground taken *25for avoiding such sales is, that fraud has been practised, which cannot be proved. If a trustee to sell, can purchase, he may lock up-in his ,own breast, secret qualities of the article sold, which would, if disclosed, greatly enhance its price. The case of a gold mine on land unknown to all but the vendor, has been, frequently put. The qualities of slaves may be urged as another. There is no end to arguments against such sales.

Then, if fraud is the ground for avoiding such contracts, (if contracts they may be called, when there is but one contracting party,) how can the vendor, having an interest, alter the easel What is lost by him as *cestui que trust,*is more than made up by his gains as purchaser. While others divide the loss with him, he has all the gains to himself; and indeed, he cannot be said to sustain any loss who defrauds himself; what he takes out of one pocket, he puts into another.

The case of Taylor vs. Crispin (2 Hill, Ch. R. 434, in notes,) settles another point. It is, that when such a sale is-set aside, the trustee shall not account for the real value of the property; that shall be ascertained by a resale.

I suppose that the plaintiffs, who ask to set the sale aside, cannot affect William Johnson’s interest, who chooses to let it stand. Therefore, he will be entitled to his share of what the executor purchased at neither more nor less, let property sell for what it may, at the re-sale. For that, the executor will account to him with interest.

As for the plaintiffs, they will be entitled to their share of the resale price, with hire of the negroes for the time the executor has had them.

It is decreed that Francis Johnson deliver up to the Commissioner the negroes he purchased, with their increase, and that the Commissioner do proceed to sell them, after giving thirty days notice. And that the said Francis do account for their hire.

The re-sale of the negroes to be made at Marion Court House, upon some convenient sale day, upon the following terms, to wit: upon a credit of one year from the day of sale, the purchaser giving bond with personal security, to be approved by the Commission ¿r, to secure the purchase money.

*26From another part of this decree, as will be found at the reference already given, an appeal was taken and decided; a reference was subsequently held before the Commissioner, and in January 1837, his report was confirmed by Chancellor Harper. The defendant then appealed from that part of Chancellor John-stons decision which has been already stated, on the following grounds:

1st. Because the purchase made by Francis Johnson, of the slaves in bill mentioned at the sale of the estate of his testator, being at public auction, after due advertisement, and for a fair and full price, acquiesced in by William Johnson, the only person supposed to be interested at'the time, should have been sustained by the Chancellor.

2nd. Because the said Francis Johnson is entitled by law to the proceeds of the sales made of the said slaves by the Commissioner.

3rd. Because the Chancellor should have decreed, that the complainants should have an account of sales made by the executor and nothing more.

*Graham,*defendant’s solicitor.

The application in this case, is to declare the purchase made by Francis Johnson, the executor, good and binding. But a preliminary question may be made. Can the defendant, Francis Johnson, appeal from the decree of Chancellor Johnston, made in 18351 When there has been no final judgment in a cause, a party may, on appeal, examine the whole case, and open for consideration all prior and interlocutory orders or decrees, any way connected with the merits of the decree from which he has appealed; and this too, notwithstanding such orders and decrees may have been affirmed by the Appeal Court. Price, executor v. Nesbit, 1 Hill’s Ch. 454; Travis v. Waters, 1 Johns. Ch. Rep. 88; 1 Brévards Digest, Tit. 58, sec. 63.

No judgment or decree is final, so long as something remains to bo done in ascertainingits amount. (Price v. Nesbit, 1 Hill’s Ch. 454, and cases there referred to.) So long as a decree operates merely as authority, or as the reasoning of the Court, to prove the party’s right in whose favor it is pronounced, it may be reviewed and re*27versed -whenever it comes up before the Court of Appeals, in any of the subsequent stages of the case. Price, Executory. Nesbit, Hill’s Ch. 459.

By Chancellor Johnston’s decree, the cause was referred back to the Commissioner, who made a new report. Exceptions were filed, and argued before Chancellor Harper. He decreed at the last term of this Court. The complainants appealed from his decree, and the defendant from Chancellor Johnston’s decree, setting aside the purchase of the slaves made by the executor. So this appeal is properly before the Court.

A trustee, to sell, cannot purchase of himself, at his own sale; and such purchases shall be absolutely void, at the election of the *cestui qua trust. 'Exparta*Lacey, 6 Vesey, 625; Morse v. Roy-all, 12 Yesey, 355.) But executors and administrators, who are interested in the estate are not regarded as trustees to sell. They are entitled to partition and may see the property is not sacrificed. They may purchase: but are required to shew that the purchase was *bona fide.*M'Guire v. M'G-owan, et. al. 4 Dess. Equity Reports, 494; Perry v. Dixon, 4 Dess. Equity Reports, 504; Reynolds v. Scarborough & Brewer, Law Journal, 106; Price, Ex’r. v. Nesbit, 1 Hill’s Ch. 461. The sale, in this case, was by order of tlje Court of Ordinary, after due notice at public outcry. *The negroes*were bid off by Josiah T. Harrell, a third party, at full price, as it appears from the sale bill, at as high, or higher, prices than those given by William Johnson, the only one believed to be interested. He, Wm. Johnson, acquiesced in the sale.

Edward Britton, the complainant, was present at the sale, purchasing. If he knew they were purchased for the defendant, he made no objection, and should be bound. If he did not know it and thought Harrell purchased for himself, then he believed they went for a full price, as he assented to their being taken off by a stranger.

Not a single badge of fraud is connected with it, except the fact that he was executor. The will directed the sale and division. It is not to be supposed that the testator intended to exclude Francis, the object of his bounty, from the privilege of buying any of the slaves directed to be sold. It appears rathor to have been *28bis intention to have the slaves exposed to sale, and that his sons and all others might bid, and that the proceeds of that sale should be divided amongst the legatees.

*WUIcins*& *Dctrgan,*complainants solicitors.

Curia, per

Harper, Ch.

In February 1835, Chancellor Johnston delivered a decree in this case, from part of which an appeal was taken and decided. There was another part of the decree, setting aside the- sale of certain slaves made by an executor, and directing a reference for an account of hire and profits, which was not appealed from. The report came before myself in January 1837, and was confirmed. No grounds of appeal from my decree are stated; but an appeal is now taken from that part of Chancellor Johnston’s decree, which was not appealed from in 1835, and the question is, whether -it can be allowed.

The argument in favor of it, is drawn from the case of Price, v. Nesbit, (1 Hill, Ch. Rep. 454,) from which it seems to be inferred, that an appeal may be taken at any time while any part of a cause remains in court; and though an appeal be taken and decided, yet upon any further steps being taken in the cause, a second appeal would lie upon the same matter.

I regret to see that the case of Price v. Nesbit has been so frequently misunderstood. It has nothing to do with the subject of appeal, which must be made according to the act of Assembly or the rule of Court. All that I understand from that case is, that while any part of a cause remains in Court, this Court will, upon a proper shewing, review its own decree, by a re-hearing. This is according to the well known English practice. But I am of opinion that to obtain a re-hearing, the English practice should be pursued throughout; that a petition should be filed, setting forth specifically the grounds of error, accompanied by the certificate of counsel, to be decided without argument. It is a great mistake to suppose that parties are at liberty, as of course and of right, again to stir a matter, which has been once adjudged, without the permission of the Court. This would be a source of endless confusion, embarrassment and uncertainty.

*29I shall make some remarks on the subject of appeal. As observed by Chancellor Kent, in Burl v. Street, (9 John. 448,) it is admitted that there is a class of orders in Chancery which are not the subject of appeal. But there never has been any precise and definite line drawn between that class of orders which are, and that class which are not, the ground of appeal. He supposes the only proper subjects of appeal to be orders involving a *decision*on the *merits*of the controversy. But it is not every decision on the merits that is a *final*decree. If there be a decree to account, this is interlocutory. Upon the coming in of the report, and the con-confirmation of it, that is the final decree. In Travis v. Waters, (1 John. Ch.Rep. 85,) a conveyance was decreed of part of the lands, with respect to which specific performance was claimed, and a reference directed to ascertain the residue of thelands to be conveyed, and the balance of purchase money due. Upon the coming in of the report, a full performance was decreed, and this last alone was held to be the final decree. It is said (in 2 Howard’s Irish Chancery Practice, 96,) that an absolute or final order is such, as when once given, nothing more remains to be done. Though a party be at liberty, he is not bound to appeal from an interlocutory decree on the merits, but may wait for the final decree. Then, upon appeal from that, as laid down in the Methodist Church v. Jacques, (17 John. 548,) all interlocutory decisions, affecting the merits, are open for examination. I do not say that if there had been no appeal from Chancellor Johnston’s decree of 1835, it might not be now taken. But it has never been supposed, that there might be an appeal from one part of a decree, and then upon a further proceeding being had, another appeal from another part of the same decree. The evident tendency of this would be to the protracting of litigation and the increase of expense.

The appeal is therefore dismissed.