
    Crittenden Ex parte.
    A decree, which disposes of the matters in issue between the parties and gives all the consequential directions necessary to carry it into execution, is a final decree; but if such consequential directions be not given, though the decree may adjudicate as to the interest or right in controversy, it is not final.
    
    A decree in favor of a demandant for dower, that she is entitled to dower as claimed, and appointing commissioners to lay off the dower, ascertain the intermediate rents and profits, and report to the next term of the court, to which the cause is continued is not a final decree; but is still within the control of the court, and may be set asido at aisubsequent term. .
    Walker, J., dissenting.
    
    
      
      Petition for Mandamus.
    
    Ann J. Crittenden presented her petition to the Supreme Court setting forth that, on the 2d day of October, A.D. 1838, she filed her petition in the Circuit Court of Pulaski county, according to the statute, against William E. Woodruff, praying dower in certain lots in the city of Little Rock, purchased by said Woodruff of Robert Crittenden, deceased, her late husband, during the coverture and to which she had not relinquished her right of dower; that such proceedings were had on her petition, that on the 15th day of April, A.D. 1839, by a decree of said Court, dower was duly and finally assigned to her in said lots and the rents, issues, and profits thereof, and commissioners appointed to proceed to the premises and, by actual survey, set apart to her such dower, and take an account of the accruing rents and report to the next term of the Court: that such commissioners did not discharge their duty, but made a report which was rejected by the Court: that new commissioners were1 appointed, but had never acted, and two of them had since died: that, on the 2d March, A.D. 1840, the third term after said decree was rendered, the said William E. Woodruff filed his petition to set aside the decree, and for leave to file an amended answer: that, on the 29th day of November, 1841, the fifth term after the rendition of the decree, the Court set aside, or attempted to set aside, such decree, and proceeded to render a decree against the petitioner: that, at the October term, 1845, she filed her application in said Court to appoint three other commissioners to lay off and assign to her her dower in said lots under the decree rendered on the 15th day of April, 1839, but that said Court refused so to do and overruled her motion. She thereupon prayed that a writ of Mandamus be awarded to the Judge of the Pulaski Circuit Court commanding him to proceed in the cause and to appoint three suitable persons as commissioners to survey and set apart her dower so assigned to her by said final decree ándito find and report the accruing value of the rents, issues, and profits, in accordance with said decree.
    The decree of the 15th of April, 1839, is substantially set out in the opinion of the Chief Justice, and literally copied in the opinion of each of the Associate Judges : and the only question presented to the Court was, whether that decree was final or interlocutory.
    Fowler, for the petitioner.
    The decree rendered in April, 1839, was made by the chancellor upon final hearing of the cause and examination of all the facts, and is a final decree.
    'A decree is final when all the circumstances and facts material and necessary to a complete explanation of the matters in litigation are brought before the Court, and so fully and clearly ascertained by the pleadings on both sides that the Court is enabled from thence to collect the respective merits of the parties litigant, and upon a full consideration of the case made out and relied upon by each, determine between according to equity and good conscience. (1 Liar. Ch. Pr. 420. Lube’s Tr. on Eq. PI. (2 Am. Ed.) 156. 2 Doug. {Mich.) Rep. 302. 2 Danl. Ch. PI. & Pr. 1192.) A decree which settles the rights of the parties, although it refers the matter, to a master to ascertain and report the amount of the complainant’s damages by proof to be taken, is a final decree. {Ray vs. Law, 1 Cond. Rep. 485. Same case, 3 Cranch 179. Taylor vs. Read, 4 Paige R. 561. Mills vs. Hoag, 7 Paige R. 19. Keatts vs. Redor, 1 Ark. R. 405. Field vs. Ross Ex., 1 ■ Mon. jR. 137. Johnson vs. Everett, 9 Paige’R. 638. Jenkins vs. Eldridge et al., 1 Wood. & Minot’s Rep. 64. 13 Pet. Rep. 15. 10 Paige R. 136.) So, in a decree directing land to be conveyed. {Larue vs. Larue, 2 Lift. Rep. 261. 1 Mon. 137.) So, a decree assigning dower as in this case. Menefee’s ad. vs. Mene-fee’s Wid. & Heirs, 3 Eng. 9. '■
    A decree which settles the rights of the parties declaring the complainant entitled to the possession of the land in controversy, is a final decree, although it makes a reference to the master to ascertain the difference in value between the different parts of the estate and appoints commissioners to make partition of the estate and directs an enquiry to be made as to the amount of damages, (Weatherford el al. vs. James, 2 Ala. (New Series) Rep. 175,) such acts directed by the decree, being merely ministerial. And so Coithe vs. Crane, 1 Barbour Ch. R. 21. Taylor vs. Reed, 4 Paige Ch. R. 561. Talbot vs. Todd, 7 J. J. Marsh. 459. And the confirmation or rejection of the master’s or commissioner’s report is merely a decretal order for carrying out or executing the decree.- 4 Paige 567. 13 Pet. 15. 1 Wood. & M’enot R. 64.
    A decree is interlocutory when it happens that some material circumstance or fact, necessary to be made known to the Court, is either not stated in the pleading, or so imperfectly ascertained by them, that the Court, by reason of that defect, is unable to determine finally between the parties; and therefore a reference to, or enquiry before, a master, or a trial of the facts before a jury, becomes necessary to have the doubts occasioned by that defect removed: the Court, in the mean time, suspends its final judgment until, by the master’s report or the verdict of the jury, it is enabled to decide finally. (1 Har. Ch. Pr. 420, 421. 2 Danl. Ch. Plead. Sp Pr. 1192.) And in such cases the cause is again brought to hearing upon the matters of equity reserved, and then a final decree is made. 1 Har. Ch. Pr. 421. Lube’s Eq. PL (2 Am. Ed. 1846) 161. 2 Danl. PI. & Pr. 1192.
    Costs in equity are not essential to a final decree — they are discretionary with the Court. 13 Pet. Rep. 368. 1 J. C. R. 182. 2 ib. 275, 318. 1 Hill Ch. Rep. (S. Ca.) 58, 92. 2 Conn. R. 403.
    Watkins & Curran, contra.
    The most unfailing test of a final decree is, that it can be enforced by execution or process from chancery in the nature of an execution, or by attachment of sequestration. The decree in this case was, that dower be assigned, and that the commissioners lay it off and ascertain it by actual admeasurement. This part of the decree could not be enforced until the commissioners made their report: they were appointed not to carry the decree into execution, but to ascertain and report the facts necessary for the Court to know before it could be carried into execution. Where the decree settles the rights of the parties, and a commissioner appointed to carry it into execution, it is final, as in Whiting et al. vs. The Bank of the TJ. States, 13 Pet. 15. Ray vs. Law, 3 Crunch 179. Field vs. Ross, 1 Mon. 137. Harvay vs. Bronson, 1 Leigh 108. Larue vs. Larue, 2 Litt. 251. Graham, vs. Hardin's ex., 4 Dana 205. Taylor vs. Reed, 4 Paige 561. Mills vs. Hoag, 7 Paige 18. But where the commissioner is appointed to ascertain some fact necessary to be known to settle the whole matter, the decree is interlocutory, as in Has-kell vs. Raoul, 1 McCord's Ch. R. 32. Travis vs. Waters, 1 J. C. R. 85. 12 John. 508. Goodwin vs. Miller, 2 Mun. R. 42. Mackey vs. Bell, ib. 523. Taylor vs. Bate, 4 Dana 205. Brown vs. Swan, 9 Pet. 1. Johnson's ex. vs. Clark, 4 Ark. 235. Harr. Ch. Pr. 622. The Palmyra, 10 Wheat. 502. 1 Cond. R. 316.
    These are certain criteria which usually distinguish final decrees, every one of which is wanting in the decree under consideration. 1st. It must ascertain the rights of the parties and. determine the amount or extent of those rights. 2d. It must be susceptible of immediate execution. 3d. It must dispose of the general costs of the cause. There must be no continuance of the cause for judicial purposes; no controversy between the parties to be settled; no rights to be ascertained. See Lube’s Eq. PL 168,173, 183. Dudley's Eq. Rep. 28. 1 Hill's Ch. Rep. 458. 3 B. Mon. 454. '4 Smedes & Mar. 730. 4 How. Miss. Rep. 485. 9 Paige Ch. Rep. 636. 3 Sm. ¿\'Mar, 514. 4 J. C. 616. 17 John. 557. 3 Hawks 41, 418. 4 Slew. & Port. 317. 3 J. C. 367. 6 ib. 75. 1 Baldwin's C. C. Rep. 289. 3 Dallas 48. S How. Miss. Rep. 638. 3 TergerlQ, 157. Greer vs. Thomas, 3 Eng. 56. Gaines vs. Patton, ib. 67. Taylor vs. Reed, 4 Paige 567. Wright vs. Petrie, 1 (S'. & M. Ch. Rep. 327. Wing vs. Warner, 2 Douglass 288. Prentice vs: Rice, ib. 296. 'Benedict vs. Thompson, ib. 300. Putnam vs. Lewis, 1 Florida 455.
   Johnson, C J.

This is an application to this Court for a Writ of Mandamus to the Circuit Qpurt of Pulaski county, to compel that Court to appoint commissioners to lay ofi* dower, and to do such other acts as are directed by a decree rendered against William E. Woodruff on the 15th day of April,, 1839, and in favor of the complainant. At the September term of the same year, Woodruff, the defendant in the Coui;t below, filed his petition to have said decree set aside and for a re-hearing, which, upon consideration, was refused. At the March term, A.D. 1840, Woodruff filed his second petition for a re-hearing, alleging error in the decree and also setting up new matter as having been discovered since its rendition. This petition was sustained, and the Court, on the 29th of November, 1841, made a formal order setting aside the decree of the 15th of April, 1839, and granting a re-hearing of the cause. On the 31st of December, A.D. 1841, the defendant, Woodruff, filed his amended answer, to which the complainant, on.the 29th of June, A.D-. 1843, entered her replication in short by consent. The cause was again submitted on the 17th of January, 1846, and, on the 2d of June following, a decree was pronounced wholly denying the prayer of the complainant, and dismissing her bill.

The contest between the parties, and which we are now called upon to decide, is, whether the decree of the 15th oí April, 1839, or that of the 2d of June, 1846, is to.be recognized as the final decree in the cause. If the first decree was final and conclusive between the parties, it is clear that the order setting it aside at a subsequent term upon mere petition is illegal and void, and that therefore the Circuit Court should have appointed new commissioners for the purpose of carrying out and effectuating the objects of the decree.

. The substance of the first decree is, that the complainant have dower in the lots described in the bill consisting of one-third part thereof for and during her natural life, and that the defendant, Woodruff, pay to her the sum of six hundred and sixty-six dollars, the one-third part of the rents, issues, and profits, of said lots, which had accrued since the death of her husband to the time of rendering the decree, that Benjamin Johnson, Nicholas Peay,. and Peter T. Crutchfield, be, and they were thereby, appointed commissioners to proceed to the premises, and, by actual survey and admeasurement, to lay off and ascertain the boundary line of such dower in said lots and buildings thereon, and to take an account of the rents, issues, and profits accruing to the said Woodruff from said lots from that time until the next term of that Court, and also to add one-third thereof to the sum already decreed to be paid, and that such, commissioners make return of their proceedings at the next term of the Court, to which term the cause was continued. The question here presented is, whether this is a mere interlocutory or a final decree,

A final decree is one which makes an end of the case, and decides the whole matter in controversy, costs and all, leaving nothing further for the Court to do. If the decree which was rendered on the 15th of April, 1839, he tested by this rule, it would seem difficult tp conceive how it can be regarded as a final decree. It did not profess to be final, nor could it have been so considered by the chancellor. It did no more than to decide the abstract question of dower in favor of the complainant and to appoint commissioners to proceed to the premises and to lay off the dower, with instructions to report to the next term of the Court, It is true that the chancellor did ascertain the amount of the rents and profits that had theretofore accrued and decreed the payment of it tffthe complainant, yet he also required the commissioners to take an account of the intermediate rents and profits which might accrue from the date of the rendition of the decree until thft next succeeding term of the Circuit Court, and also to add one-third of that sum to the amount already decreed to be paid, and further that such commissioners shall report their proceedings to the next term of the Court, to which term the cause was regularly continued. The commissioners, then, were not only required to admeasure and lay off the dower in the lots described in the bill, but they were also required to state an account' and report the result of their labors to the next term of the Court.

It is perfectly certain that the decree is not final in its terms, but strictly and technically interlocutory. “ A decree never can be said to be final where it is impossible for the party in whose favor the decision is made ever to obtain any benefit therefrom without again settintg the cause down for hearing before the Court, upon the equity reserved, upon the coming in and confirmation of the report of the master, to whom it is referred to ascertain certain facts, which are absolutely necessary to be ascertained before the case is finally disposed of by the Court; or which the chancellor thinks proper to have ascertained before he grants any relief whatever to the complainant. But if the decree not only settles the rights of .the parties, but gives all the consequential directions which will be necessary to a final disposition of the cause, upon the mere confirmation of the report of the master by a common order in the register’s office, it is a final decree, and may be enrolled at the expiration of thirty days, although the amount to which the complainant may be entitled under such decree is still to be ascertained upon a reference to a master for that purpose. Thus, in the ordinary case of a bill for the foreclosure of a mortgage, if the decree merely decides or declares the rights of the complainant by virtue of his bond and mortgage, and refers it to a master to comp ute and ascertain the amount due to him, reserving all further questions and directions until the coming in and confirmation of the master’s report, it is an interlocutory report merely, as the complainant cannot obtain the benefit of his suit until he brings the cause on to be heard again upon the equity reserved and for further directions as to a sale of the mortgaged premises, and the payment of his debt and costs out of the proceeds of such sale. But if the decree, in addition to the reference to the master to compute the amount due upon the bond and mortgage, proceeds further and gives the usual directions in such cases, that upon the coming in and confirmation of the report of the master the premises shall be sold, and that the master who makes such sale shall pay the amount so reported due, together with the interests and costs, out of the proceeds of such sale, and directing the mortgager to pay the deficiency reputed due upon such sale, the decree is final, although the mortgager may have the right to except to the master’s report of the amount due. For, the questions arising upon the exception to the master’s report in such a case, are merely incidental to the carrying of the final decree in the cause into full effect.” 9 Paige Ch. R. p. 638, 639.

Can it be said that the party, in whose favor the original decree in this cause was made, can obtain any benefit from it without again setting the cause down for hearing before the Court upon the equity reserved, upon the coming in and confirmation of the report of the commissioners ? I think it clear that such a position, if taken, cannot be sustained. The decree utterly fails to give the necessary directions which would authorize its enforcement upon the coming in and confirmation of the report. It simply settles the right to dower, and appoints commissioners to ascertain its limits and amount, and to report the result of their proceedings to the next succeeding term of the Court. It contains no order upon the defendant either h/deliver possession of the realty or to pay the amount which should be found due for the rents and issues of the land upon the coming in and confirmation of the commissioner’s report.

The counsel for the petitioner has referred us to the case of Menefee's ad. vs. Menefee et al., (3 Eng. R.,) and it is upon that case that he mainly relies for a favorable decision in this. I have scanned the decree in that case critically, and the result of my examination is, that it will not stand the test of the rule laid down by the authorities. The rule upon the subject is uniform and inflexible that the decree, to be final, must either be full and complete in itself and ready for immediate execution, or it must contain all the consequential directions which would be necessary to its enforcement upon the coming in and confirmation of the report. It is with great reluctance, at all times, that I would overrule one of my own decisions; yet I conceive it to be our imperative and indispensable duty to do so, whenever, upon á more thorough investigation and more mature reflection, it becomes manifest that such decision is not in accordance with the great and fundamental principles of the law. In the ease referred to, the decree did not ascertain and describe by metes and bounds the particular portion of land, nor did it designate the identical negroes of which the widow should be endowed, nor did it contain directions as'to what should be done upon the ascertainment of such facts and the confirmation of the report of the commissioners. In respect to this matter, both decrees are essentially alike.

It will not be denied but that the question whether the report of the commissioners appointed by the decree in this case, should be confirmed or rejected, would be merely collateral to those involved in the decree itself, and that, consequently, the decision of the one would not be, in the slightest degree, affected by the other: yet this circumstance could not dispense with the necessity of a final order or decree directing and pointing out the peculiar mode of carrying the whole into full and complete effect. The original decree rendered in this cause is utterly inadequate to effect the purposes of a final decree. It neither informs the defendant what he has to do, nor does it arm the complainant with the power to compel him to do any thing: and, what is still worse, it gives no directions as to what shall be done upon the coming in and confirmation of the report.

The chancellor of the State of New York, in the case of Coithe vs. Crane, (1 Barbour Rep.,) said : “ The decree in question is undoubtedly a decree directing the payment of money, although the amount to be paid is not ascertained in the decree itself. It is also a final decree, as it disposes of the question of costs, and gives all the consequential directions upon the coming in and confirmation of the master’s report by the usual order in the clerk’s office;” and then refers to the case of Mills vs. Hoag, (7 Paige Rep. 18.) The decree in this case is not only not final, but it is a matter of much doubt whether it could have been so considered in case the Circuit Court had proceeded to make all the consequential directions in anticipation of the commissioner’s report. It did not follow necessarily that the commissioners would find a decision practicable, and if so, they would have been required to report that fact, and the moment such report should have been made, their authority would have ceased, and could have been revived only by another order directing them to ascertain the annual profits, and a further order upon the defendant to pay them over to the complainant when they should fall due. This view of the decree in question would alone determine its true character. For, in the event that the specific property should not be susceptible oí a division, that being the extent to which the commissioners were authorized to go, it is clear that the decree could not reach the real estate, and that consequently the widow could not derive any benefit from it.

The commissioners were not appointed to execute the decree, but merely to ascertain certain facts which were necessary to be known to the Court before a final decree could be made. They were only authorized to proceed to the premises, and, by actual survey and admeasurement, to lay off and ascertain the boundary line of the complainant’s dower in the lots described in her bill and the buildings thereon, and also to take an account of the rents, issues and profits that might arise therefrom until the next term of the Court, and to add one-third thereof to the sum specified in the decree to be paid, and to make a full report of their proceedings to the next term of the Court. Can such a decree be said to make an end of the case, and to decide the whole matter in dispute ? The chancellor wanted the materials for a final decree. lie took the steps necessary to procure them. Until they wore furnished, he could do no more than make the interlocutory order which he did. He arrived at principles upon which a final decree could be rendered, but he was not yet in possession of the facts necessary to enable him to make it. He was of opinion that the complainant was entitled to dower in the lands and improvements and also in the rents and profits which had accrued from the time of the death of her husband. But, inasmuch as the one-third part of the described lots was not ascertained and designated by metes and bounds, and indeed could not be, without the aid and intervention of commissioners, or some other description of agents, it became absolutely necessary to make such appointment, and to wait for their report, as the only means which would enable the Court to make a final decree.

I have carefully examined all the cases cited by the counsel for the petitioner, and none of them, in my opinion, do sustain the argument that this is a final decree. In the case of Harvey et ux. vs. Bronson, (1 Leigh 118,) a commissioner had been appointed to sell the land to complainants, who was to report to the Court, &e. The rights of all the parties, however, were fully and finally settled, and costs decreed. The appointment of the commissioner was merely to execute the decree, precisely as in the case of a sale under a decree to foreclose a mortgage. But that is very different from the present case, where the commissioners were appointed to enable the Court to obtain possession of the whole case. This was, then, unquestionably, an interlocutory decree, and, consequently, open to a re-examination by a petition for that purpose. In the case of Colk vs. Stribling, (1 Bibb 124,) the Court of Appeals of Kentucky lay it down as a well established rule that a Court of Chancery has a right to alter an interlocutory decree at any time before a final decision therein, and without being requested by cither party. This opinion is confirmed by Chief Justice Marshall, in the case of Field vs. Holland, who abserves, a Court of Equity may ascertain facts themselves if the evidence enable them to do so, or may refer the question to a jury, or to auditors, and that, after an issue ordered, the Court may proceed to a final .decision without trying the issue ,or even setting aside the order. This, I conceive to be the settled law upon the subject of final decrees, yet it can have ■no effect upon the decision of this cause, as the decree under consideration is not of that character.

I am, therefore, of opinion that the Circuit Court had the undoubted right to set the original decree aside, and, having done so, in the exercise of its sound discretion, it ought not now to be compelled to appoint commissioners to carry out its provisions. The application should, therefore, in my opinion, be denied.

Scott, J.

The question involved in this application, whether or not the decree pronounced at the April term, 1839, was final or interlocutory in direct reference to our statute regulating appeals in chancery, having been contested with the utmost severity, the labor of counsel has thrown upon it a flood of light. And, being sensible that were I to enter upon a critical examination of the various authorities cited and elucidated by the counsel, and attempt to show, in every aspect, their relative bearing upon the point in issue, I should be allured far beyond the.bounds ordinarily allotted to a judicial opinion. I shall, therefore, almost of necessity, leave to the briefs to present the foundation and elements of my views, and proceed at once to the question before me, with the single general remark, as to the. authorities cited, that I have found among them a remarkable harmony and very little actual conflict. '

I shall first examine the point in issue in reference to principle, and then make a brief reference to a few of the authorities.

There is no distinction in law more clearly defined and better understood, at least in the broad outline, than that between interlocutory and final judgments. And upon the same basis, in principle, rests the distinction in chancery between interlocutory and final decrees. And upon a question of jurisdiction, we may, with as much propriety, depart from the plain letter of the act of the Legislature relative to judgments as to decrees, as the same words of the act are equally applicable to both.

All decrees are either interlocutory or final — there is no middle .class, — and the same may be said of orders in chancery. And although it may not be difficult to give a definition of each that might be an unerring criterion for numerous decrees, yet so infinite are the matters of equity cognizance, and in such complicated aspect are they so often presented, that it would be difficult indeed, if not altogether impossible, to present one sufficiently comprehensive to embrace every case. It is, therefore, that some of the definitions found in the books (and indeed this may be broadly said of each of them separately) fall very far short of presenting clearly to the mind any rule for the determination of cases that often arise. Hence so many cases are found in the hooks, where the question has evidently been decided upon the particular circumstances of the whole case with only a general reference to such definition and a more particular reference to the subject matter and the end in view by the proceedings. And, upon a thorough analysis of the cases, the distinction will be found to rest, for the most part, upon a substantial foundation of strong analogy to that upon which the distinction between interlocutory and final judgments at law is based.

Nor is this at all remarkable when it is remembered that, although courts of law track more closely, in their proceedings, known and fixed rules of law, than courts of equity do, yet those very fixed rules are but for the production of the identical same results, and tend to the same end that the more flexible rules of the equity courts áre designed to achieve. In both courts, the first object is to enable the Court to come at the whole case — to this end all judgments and orders are purely interlocutory. The next object is to pass upon the cause thus fully presented, and upon the doing of this the judgment or decree is final. Then the third object is to execute the judgment or decree, and, in the doing of this, orders may be refused to forward, retard, or terminate the execution: and these again will be either interlocutory or final according to their legal effect. And, from such as may be final, an appeal in chancery will lie under our statute. Such appeal, however, having no effect to bring up or open the decree; but it touches simply the execution of the decree, in the identical same sense that the quashal or supersedeas of a fi. fa. will affect only the process and not the judgment itself.

These are elementary principles that all understand; but they are not the less to be kept in view; nor can the strong analogies between judgments and decrees be safely lost sight of in considering a question like that at thebar. And especially should not this be done, when the subject matter is one of legal cognizance, the jurisdiction of which has been assumed, concurrently, by the chancellor, upon the sole ground that he can somewhat more completely fit the remedy to the exigencies or equities of the parties or to their agreement in the premises, — not in adjudging what are their legal rights, but in the special and particnlar matter of the assignment and actual admeasurement of dower: that in these matters he can, in some degree, mitigate the stern visage and rigid features of law. But expressly avowing, at the same time, that the legal rights of the parties in matters of dower, as well as in matters of partition, are to be determined in equity by the identical same rules that determined them in the courts of law. Agar vs. Fairfax, 17 Ves. 351. Parker vs. Gerrard, Ambler 236. Furner vs. Morgan, 8 Ves. 143, Wiseley vs. Findlay, 3 Randolph 361.

Nor will it be totally profitless to take a rapid glance at the common law remedies for Dower and Partition, there being a close and strong analogy between them, and their jurisdiction in equity having been assumed upon the identical same ground.

Originally the common law afforded the widow, for the recovery of her dower, two writs adapted to the injuries she might have sustained. The one, the “ Writ of right of Dower,” and the other the Writ of Dower unde nihil hahet. The first enabled her to recover of the alienee of her husband where only a part of the land had been aliened and she had recovered her dower in the residue. When that was the case, she could not sue out the i(unde nihil habetf because she could not truly allege that she had recovered nothing, and in such case she was compelled to resort to the “Writ of right of Dower,” which extended either to the part or the whole. But afterwards, by statute W, ch. 49, to remedy this inconvenience, it was provided that it should be no plea in abatement to say that she had received part of her dower of any other person before writ purchased, and thus both writs were made equally available to her in most cases against the alienee: and the statute of Merton, ch. 1, enabled her to recover damages for the detention of her dower. After this, the final judgment of the Court was that she recover her damages and also the lands that had been previously admeasured to her for which she had execution as to the land (so by metes and bounds adjudged to her) by Habere facias seizmam. Bac. Abr., “Dower” (I.)

So, also, the writ of Partition originally lay only for Parce-ners, and the reason ghren was, that, as the tenantcy in copar-ceny was created by law, it was reasonable that the law should give the tenants partition. But, as joint tenants and tenants in common became such by their own act, the law provided no means by which they could obtain a separate interest in that which had become joint and undivided by their own consent. (Coke Litt. (Tho. Ed.) 7 vol. p. 806, top.) But the writ was after-wards extended to them by st. 31st and 32d Hen. 8, and the latter statute extended it to the joint owner of a lease for years. Ib. note (N.)

In all proceedings on these writs in the common law courts, there were two judgments : the one interlocutory and the other final. The first, in a proceeding on a writ of Partition, was a judgment, upon the legal rights of the parties, that partition be made. Upon this, “partition was made by the oath of twelve men and assignment and allotment thereof,” and, upon being so-returned by the sheriff, the penal judgment cpiod partitio precedida firma et stabiles imperpetuam tcneaiur was rendered, and, until this was done, no writ of error lay. Ib. p. 808, top.

Such, then, were the common law remedy and the common law mode of proceeding. But although the courts of equity assumed concurrent jurisdiction of both classes of cases upon the same ground, and admitted that it Avas a jurisdiction that was not discretionary but ex debito justifies, (Wisely vs. Finlay, 3 Randolph 361,) and, bound by the principles that govern like cases at law, they were not bound to adopt, nor did they adopt, the common law course of proceeding, but, on the contrary, proceeded in their own mode. Consequently the mode of proceeding in the common laws courts can throw no other light upon the question at bar than as presenting the measure of the development of the facts of such cases that those courts required before a final judgment was allowed, thereby showing what the common Iatv courts considered to be the merits of such cases. Upon which merits the judicial discretion of the Court was passed.

Now, I apprehend that there can be no good reason why the chancellor should be allowed to make a final decree Avithout first exercising his judicial discretion upon the whole merits of any case; on the contrary, if there be any difference between him and the common law judge, as to this, it will consist in making it incumbent upon the chancellor to look more closely and thoroughly into the whole merits, especially in cases like this at bar, where he assumes jurisdiction not only upon the ground that he can administer the law and pass upon the legal rights of the parties as well as the common law judge can, but, in addition to this, that he can do more ample and complete justice between the parties by mitigating,in an adjustment upon equitable principles, any hardship that may grow up and be developed in the matter of the actual admeasurement and setting apart of the dower assigned. Doubtless, however, the only true difference as to this consists in the different general process in which they administer justice : that of the common law judge, being fixed and definite and not admitting of prospective adjudication beyond an order nisi, predicated on something already before him, his final judgment can be pronounced only on that which is actually and in fact before him; while that of the chancellor, being more flexible, his final decree may not only be pronounced on that which is in fact before him, but also, at the same time, upon other matters connected therewith, that are within his reach and susceptible of such judicial direction as to the mode of doing the things to be done; and by settling the principles on which they are to be done in a manner so accurate and certain, that the acts to be done in pursuance of such direction are thereby but ministerial acts, and thereby the party is refused or decreed the remedy sought on the whole case. And thus, by passing judicially upon that which, is actually before him, and at the same time prospectively as to that connected therewith by means of those further directions, he passes judicially upon the whole merits of the case, as fully as the common law judge does after waiting for the coming in of the facts not at first before him.

But I apprehend that if the chancellor does not in fact pass judicially upon the whole merits of the case in one of the two modes indicated, and refuse or allow the remedy sought, his decree will not be a final one unless he puts an end to the case and turns the parties aut of Court. And this seems fairly in-ferrible from the rule as to final decrees laid down in Harrison’s Chancery Practice, to wit: “ A decree is final when all the circumstances and facts material and necessary to a complete explanation of the matters in litigation are brought before the Court, and so fully and clearly ascertained by the pleadings on both sides that the Court is enabled from them to collect the respective merits of the parties litigant, and upon full consideration of the case made out and relied upon by each determine between them according to equity and good conscienceAnd also deducible from the rule .laid down by the Court of Appeals of Virginia, in the case of Alexander’s heirs vs. Coleman & wife, (6 Munf. R. 328,) upon a question of jurisdiction under a statute like ours, where that Court reviews ’all their various decisions on the point, and it is there said by Judge Cabell : “I have examined, with great attention, every case in this Court on the subject of interlocutory decrees, from that of Young vs. S/cipwith, (2 Wash. 300,) to the present time. They are all so well recol-ted, that I deem it unnecessary to enumerate them or to detail their circumstances. They were all, without exception, decided on the same general principle, that every decree which leaves any thing to be done in the cause by the Court is interlocutory as between the parties remaining in Court.”

Now I propose to examine the decree before me to see if it be final in view of these principles and rules.

The remedy the petitioner sought was the possession of a several estate for life to the extent of one-third of the whole, to be carved out of the entire estate held in fee by the defendant, and to recover one-third of the back rents and profits, since the death of her husband; and it was “ decreed that dower in said lots, consisting of one-third part thereof, be assigned to the said petitioner for and during her natural life, and that the said defendant pay to the said petitioner the sum of six hundred and sixty-six dollars, the one-third part of the rents, issues and profits of said lots, which, by the proofs in this cause, have accrued since the death of the said Robert Crittenden to this time, and that Benjamin Johnson, Nicholas Peay, and Peter T. Crutchfield be, and they are hereby, appointed commissioners to proceed to the premises, and, by actual survey and admeasurement, to lay off and ascertain the boundary line of such, dower in said lots and buildings thereon, and to take an account of the rents, issues and profits accruing to the said defendant from said lots from this time until the next term of this Court, and add one-third thereof to the sum above decreed to be paid, and that said commissioners make return of their' proceedings to the next term of this Court, to which term this cause is continued.”

In the first place, it may be remedied that this is not a case where, by the terms of the decree, the cause is ended, and the parties dismissed from the Court, and its finality could be urged upon that ground irrespective of its completeness or correctness, but a case where its character has to be determined from what has actually been passed upon and decreed, although the cause and the parties are, by the terms of the decree, expressly continued in Court until the succeeding term. "What, then,has been passed upon and decreed ? Certainly nothing but a part of the legal rights of the parties — not the whole of them, — and none of the equities, if there be any in the case.

Besides the legal rights declared by the decree, that is to say, that the petitioner had a right to,dower in gross in the lots, that that dower be assigned to her by actual survey and admeasurement : that its quantity was a life estate in one-third part of all the lots, she had a further legal right that was not passed or decreed to recover in severalty the specific dower, so declared to be her right and so directed to be laid off by metes and bounds. Until this was done, all her legal rights had not been passed upon. This recovery for the specific dower after the same should have been admeasured and set apart by metes and bounds was the final judgment at law, and was enforced by the writ of Habere fac. seisinam, and until there was a judgment for this, or it was refused, the remedy sought was neither refused or recovered. None of the equities of the parties have been passed upon in any way because the case had not progressed far enough to develope them, nor does the decree by further directions pass upon them in anticipation.

But it is possible that the real estate was susceptible of the admeasurement and setting apart of the specific dower without resulting in any hardships .touching such setting apart in seve-ralty by metes and bounds of the dower, and therefore there would be none for the chancellor to mitigate and no equities to adjust. True, that may be so, the pleading and evidence presenting that point indefinitely, but when the parties leave the law forum and come into equity, the presumption is that such hardships will arise, and tlnjt there will be such equities to adjust. And if the contrary presumption be indulged, and the decree be held as final until and unless these hardships arise and these equities be developed in the progress of what would, in that case, be considered but the execution of the decree; and that then they could be adjusted by a further decree, then one of two things must be the inevitable result, that is to say, that the first decree would be in interlocutory only, by reason of its being in its essence a decree, nisi, that would need confirmation to make it final, (Aldridge & Claiborne vs. Giles et al., 3 Hen. & Munf. 136,) or else there would be two separate final decrees in the cause from each of which an appeal would lay, which, I apprehend, could not be maintained in our system. The one final decree would be upon a part of the legal rights of the parties, and the other would be upon the remainder of those legal rights and all the equities between the parties.

I have said that all the legal rights of the petitioner have not been passed upon, and that her right to recover the specific dower, after its allotment, has not been decreed, either in terms or by further directions. This, I lay down from the face of the decree itself. If the contrary can be maintained at all, it can only be maintained upon the ground of intendment: that is to say, that when the chancellor decreed her right of dower in the lots, fixed its extent, and that it be assigned to her, and that commissioners be appointed to admeasure and ascertain its' lines by actual survey, it must be intended that he also decreed that she should recover and possess it as soon as ascertained and set apart.

Now, in the first place, the face of the decree is wholly inconsistent with such an intendment, in this, that these commissioners were directed, in addition to the actual allotment of dower, to take an account of the rents, issues and profits accruing to Woodruff, from said lots, from that day (not until such survey and admeasurement) until the succeeding term of the Court. The continuance of the cause is also inconsistent with this in-tendment. And the total failure of the chancellor to give further directions beyond a report of the commissioners at the succeeding term, is the strongest sort of negative of such intendment, as it indicates that he had elected the usual course of ascertaining all the merits of the case and developing the equities between the parties, previous to passing judicially upon them (just as the common law judge does in every case) instead of passing upon them in anticipation by giving further directions.

Besides, to intend that the chancellor had decreed that the petitioner should recover, possess, and be seized, of her specific dower as soon as it should be ascertained by survey and ad-measurement, and by this intendment hold his decree final in the face of his order directing dower to be admeasured and set apart with directions to report at the next term, in the absence of all further directions, would be, in effect, to take from him the power of doing at all the only thing that he had assumed to do, better than the common law judge, that is, that he could better adjust, upon equitable principles, the setting apart of the actual specific dower assigned. Because, if, by such intendment, such a decree be final, the moment the chancellor decrees that the petitioner has a legal right to dower, to be carved out of the estate in fee, and sends out his commissioners to lay it off, although this very act of his commissionei’s is, in its nature, directly calculated to give him information, on which to base his subsequent final decree, of specific dower in one of several modes, either in the real estate itself, or in the rents and profits to accrue therefrom in future, his hands become instantly tied, and the only object and purpose for which he assumed jurisdiction is at once defeated, as he cannot move any farther than by executing this decree which has been so, against his will, held to be final.

Nor is this the only consequence of holding by intendment such decree to be final, and that all else to be done is but the execution of the decree, as it will inevitably follow that if the estate in tee be incapable of specific physical division, so that one actual third part in view of quantity and value can not in severalty be set apart to the widow, and the decree would, in consequence, have be executed by renting out the property and decreeing the rents and profits, this could be done only by the exercise of judicial functions, and thereby there would be a second final decree, technically so, in the same cause. That sort of practice was allowed in England, and, under statutory regulations, is allowed in New York in substance, (3 John. Ch. 66, 68, 123, 163. 15 Ves. 184. 16 Ves. 213, 218. 18 Ves. 453. 9 Ves. 319. 14 Ves. 184. 15 Ves. 585.) And see the argument of M. Wickam in the case of McCall vs. Peachy, 1 Call, Va. Rep. 58, marginal, and Putnam vs. Lewis & wife, 1 Florida Rep. 475; but it cannot be .tolerated in our system, which contemplates but one final decree in any case, from which an appeal can lay, and that must, as I suppose, be that which puts an end to the case giving or refusing the remedy sought. And doubtless it was in reference to that practice that the rule, laid down in Daniel’s Ch., p. 1199, was adopted, “That when the decree does not reserve the consideration of the points of equity arising upon the determination of the legal rights of the parties, it is said to be a final decree,” and it would seem, therefore, not particularly applicable to our practice, and perhaps in no cases applicable except in those where the decree, in terms, either gave or refused the remedy sought, and might, in some sense, be a qualification of the rule I have extracted from Harrison’s Chancery Practice.

The decree before me cannot, in my opinion, then, be considered a final one on the ground that it shall be intended that the chancellor decreed that the petitioner should recover and be possessed and seized of the specific dower, as soon as it should foe surveyed and set apart. Nor can the operation of Mr. Daniel’s rule, which I have just cited, make it so, because, as I think, that rule has no application in our system to such a case as this. And, therefore, as no decreee was rendered, either in fact, or, as we have shown, by intendment, that the petitioner recover in severalty the dower directed to be assigned by metes and bounds, or that WoodrufF should render the same to her after such survey and admeasurement, it was clearly an interlocutory decree within the rule laid down by the Virginia Court of Appeals, because this was left “to be done in the cause by the Court” — no decree being final (as was there solemnly held after a review of all the cases) “ where any thing is left to be done in the cause by the Court between the parties remaining in Court.”

The decree seems clearly interlocutory also when tried by the rule which I have before cited from Harrison’s Chancery Practice, because of the absence of all the material facts touching the practicability of severing the dower estate in kind from the estate in fee — these facts being not clearly ascertained by the pleadings —and therefore the Court was not enabled to have a full view of the merits of the case and determine between the parties according to equity and good conscience, (also see Jaques vs. Methodist Church, 17 John. 559;) and, for want of these facts, the decree is, as I think, clearly within the counterpart of that rule, as laid down by the same authór, to wit: A decree is interlocutory when it happens that some material circumstance or fact necessary to be made known to the Court is either not stated in the pleadings, or so imperfectly ascertained by them, that the Court, by reason of that defect, is unable to determine finally between the parties,” &c.

And, having now disposed of the subject in this view, I will proceed briefly to examine the point in issue in reference to some of the numerous adjudged cases that have been cited.

The mortgage cases cited have very little bearing upon the question, but, so far as they bear at all, they decidedly support the view I take of the character of the decree before me, in showing that nothing short of a view of the whole merits will do as a basis for a final decree against the defendant. In the cases of Fairfax vs. Mure ex., 2 Hen. & Mun. 558. Ellzey vs. Lane’s ex., ib. 589, and Allen vs. Belches et al., 595, all decided by the Court of Appeals of Virginia, in the year 1808, the Court held that a decree to foreclose a mortgage and appointing commissioner to make the sale, does not become a final decree until after the report of the commissioner and its affirmance. After that time a statute was passed authorizing appeals in the discretion of the High Court of Chancery from interlocutory decrees, and, under this provision of the statute, appeals are granted in cases of mortgages and other decrees for the sale of property, but the doctrine as to the finality of such decrees, as laid down in the cases I have just mentioned, has never been shaken in that State. Judge Maeshall, however, seems to have held otherwise in Ray vs. Law, 3 Cranch 179, but assigns no reasons.' Afterwards, when the question arose again in the Supreme Court of the United States, in Whiting et al. vs. The Bank of the United States, 13 Peters 15, Judge Story sustained the doctrine of Ray vs. Law, putting it, however, upon the ground that such a decree was final upon the merits of the controversy between the parties, and that unless an appeal would lay as soon as such a decree was pronounced, irreparable mischief might ensue, because the sale would extinguish the title to the land sold, notwithstanding the decree might be subsequehtly reversed. And the other . cases cited from New York and Kentucky but follow the decisions of the Federal Courts. The principle of these decisions, however, is, that the decree having been upon the whole merits of the controversy between the parties, the sale by the commissioner is purely the execution of the decree, and this is doubtless correct.

The partition cases have a more direct bearing. That of Young vs. Skipwith, 2 Wash. 383. Gudgell & Austin vs. Mead et al., 8 Misso. 53. Putnam ex. vs. Lewis & wife, 1 Florida 455, all hold that a decree that partition be made ascertaining the respective interest of the parties, and appointing a commissioner or surveyor to make the partition according to the decree, and make report at the succeeding term, is not a final but an interlocutory decree. And the case of Talbot vs. Todd, 7 J. J. Marsh. 456, where there was a further direction to the commissioner to “ assign to Talbot the lower and Todd the upper end of the tract of land,” does not, in the least, conflict with these three cases, because by specification'that Talbot should have the lower end of the tract, and Todd the upper end, the complainant recovered the remedy he sought, in this severance of the joint interest, and the act of partition was but the execution of the decree like the sale in the mortgage cases. When,' however, as in the other three cases, the’ decree did not go thus far, but stopped at the partition, there was something remaining to be done in designating and decreeing to the parties their several estates; and as this remained to be done, and the cause and the parties were continued in Court until the return of the commissioner, which would bring in the facts necessary to base this further decree, such decrees of partition were interlocutory and not final — -being thus strongly analogous to the case at bar where the decree stopped short at the admeasurement of dower, and did not go on further and decree the dower thus admeasured to the widow in severalty.

The case Bumbass et al. vs. Webb, 4 Porter 65, in so far as this, has some bearing, that is to say, that in that case, after disposing of the main principles of the bill, the Court directed an inquiry into the value of rents and profits, and directed a report to be made at the subsequent term. The Supreme Court held that decree to be interlocutory, because, like the case at bar, something was left in the cause to be done by the chancellor between the parties in the Court. The case of Johnson et al. vs. Everett et al., 9 Paige, presents very clearly the general grounds upon which the decree at bar should be held to be interlocutory only.

It seems to me to be unnecessary to discuss the docti’ines of the Chancery Courts touching reservations in a decree, as, in my opinion, these doctrines are not involved in the case at bar. A reservation might certainly hold a decree as interlocutory which, without it, would be final, but it seems to me that the want of a reservation could never make a decree final which from being made upon only a part of the merits of the case was for that reason in its nature interlocutory •, in other words, a reservation, if touching the decree itself, might hold what would otherwise be a full-grown final decree in abeyance as an interlocutory one, but the want of it can never make a half-grown decree loom forth into maturity.

I agree with the Chief Justice in opinion that the application for a Mandamus should be refused.

Walker, J.,

dissenting. It is very true that, originally, the common law Courts, in most cases, claimed exclusive jurisdiction over the subject of dower, and the usual remedy afforded was a “Writ of Dower unde nihil habet,” or by a “Writ of right of Dower.” Contemporaneously with the common law remedy, there existed .also an equitable jurisdiction over a particular class of cases, as, for instance, where the tenant held in capita, whose heir was in ward to the King, the widow sued for dower in chancery, and it was assigned her by commissioners appointed for that purpose. (Bac. Abr., “Dower,” p. 136.) This Court, under circumstances of peculiar hardship, was permitted to extend its jurisdiction over cases where, owing to circumstances, common law remedy, limited to certain defined rules in the development of facts and in rendering and executing judgments, could not afford to the parties adequate relief, until, by degrees, under an improved and liberal practice, it acquired a clear and well established concurrent jurisdiction with courts of law in such cases. This concurrent jurisdiction, under particular circumstances, commenced as early as the days of Elizabeth; and in the case of Wild vs. Wells, decided in 1583, dower was assigned in chancery by commissioners. A general, independent, concurrent jurisdiction, was perhaps first asserted and placed upon a more prominent and liberal footing after the very learned and able opinion delivered by Lord Alvanley, then master of the Rolls, in the case of Curtis vs. Curtis, 2 Brown Ch. R. 620. Judge Story, (1 Com. Eq. 579,) in reference to this case, says: “ But the propriety of maintaining a general jurisdiction in equity in matters of dower is still more fully vindicated in a most elaborate opinion of Lord Alvanley, when master of the Rolls, in a case which now constitutes the polar star of the doctrine.” And the same learned commentator, who pronounced so deserved an encomium upon the decision in the case of Curtis vs. Curtis, affirms that, at the present day, the doctrine is not only firmly settled in the American courts, but that “ Dower is highly favored in equity,” and cites, in support of this assertion, the declaration of Sir Thomas Tower, “ That the right, which a dowress has to her dower, is not only a legal right and so adjudged at law, but it is also a moral right to be provided for and have a main-tainance and sustenance out of her husband’s estate to live upon. She is, therefore, in the care of the law and a favorite of the law, and upon this moral law is the law of England founded as to the right of Dower.” (1 Story Com. Eq. 581, 583.) And for many years now has this equitable jurisdiction been not only fully recognized, but it has so completely superseded the common law remedy that the latter remedy, has totally fallen into disuse, and may well be considered obsolete, except perhaps in New Jersey, and as holding a place in the history of the early common law jurisdiction with many others alike useless in practice.

This jurisdiction of the equity courts over dower (although it commenced, like nearly all the other cases of concurrent jurisdiction of this Court, in remedying the hardships and inconveniences of particular cases in which the common law remedy was found incompetent to afford relief) was ingrafted in a soil congenial to its growth. The condition and circumstances of the claimant and the subject matter and purpose of the application, held out strong inducements to this tribunal to apply its enlarged and liberal jurisdiction over this class of cases. Indeed, it is a species of guardianship extended over one, bereaved and destitute, with a mind ever sensitive, overwhelmed and prostrated by the severest calamity: one who, from the imposition of the rules of the common law upon her rights in marriage, has been cut off from all concern in the management of the real estate acquired by her husband, forbidden to inquire into and presumed to know nothing of the facts connected with the title under which he held, and not even allowed to possess herself of the title papers, which all go to the heir, and which are indispensably necessary to maintain her title at law. In tenderness to the life she has lead, (which, in fact, so far as the responsibilities of life are concerned, is but infancy,) forbidden and incapacitated in law to engage in litigation, until, most frequently at an advanced age .with a dependant family, she is suddenly called upon to compete with the acute, well trained mind in securing (perhaps) a home and shelter for herself and family. I repeat that, when thus situated she enters this new theatre in which the law has heretofore forbidden her to act, equity may well extend its indulgent protection over the widow and her shattered fortunes, and save them from the grasp of the strong and the relentless upon principles in analogy with cases of infancy orp even lunacy itself; not to secure to her rights greater than she is entitled to in strictness of law, but to protect those rights and see that she gets them, — -to afford her facilities in their attainment, which the common law courts are forbidden to extend.

This jurisdiction, sustained and vindicated by these various considerations, so highly favored in equity, has a permanent hold upon the subject of dower, which has superseded and overshadowed all other jurisdiction, until it may be now considered an exclusive rather than a concurrent jurisdiction with courts of common law. Nor can I consent, as is contended in this case-, (and it is to be properly understood upon this point that I have glanced at the earlier jurisdiction of the courts in regard to dower,) that the rules of practice which were in use under the common law remedy shall be resorted to, either to furnish rules or to interpret those furnished by the courts of equity, for ascertaining and settling the rights of the parties under its jurisdiction. Whilst I fully recognize the obligations which Courts of Chan-cerycare under to determine the rights of the parties according to law, I have, at the same time, understood that, in the application of the remedy to those ascertained rights, its powers were plenary; nor have I found an authority, which raises a doubt in my mind of the power of the Court to shape its decree to the fullest attainment of the relief sought, or, when the points of. equity, upon which those rights arise, are before the Court, that it has the same right to determine finally upon them and render a final decree, that it has to reserve points of equity forfurther consideration ; and that, where the Court proceeds to pass upon them, and does so pass upon them, and directs the process by which the decree is to be executed, the decree must be taken as final upon those rights, unless by express reservation it is ordered differently.

The importance which has been attached to the practice in the common law courts in regard to the assignment of dower, has not only imposed upon me this brief review of the jurisdiction of the several courts originally and at the present time, but will require a minute review of the authorities referred to in support of the practice itself, and such others as have come under my observation. Let it be borne in mind, also, that these authorities are not found in cases for partition of dower, but in partition between parceners and joint tenants, and it is only by analogy that the practice is sought to be applied to partition of dower. The action by writ of ‘partitione fadenda at the common law was only allowed to coparceners; joint tenants and tenants in common had no such remedy until it was given by statute 31 Henry 8, ch. 1. And it was the statute 8 and 9 William, ch. 31, which regulated the practice in such cases. By that act it was provided that, from and after the first day of May, 1697, “after process of pone or attachment returned upon a writ of partition and affidavit made of due notice given of said writ, if there be no appearance entered in fifteen days after the return in Court of such writ, then the demandant having entered his declaration, the Court may j^oceed to examine the demandant’s right and part, and, according as they shall find the same to be, they shall, for so much, give judgment and award a writ of partition, which writ being executed after eight days notice to the occupier, and returned and thereupon a final judgment entered, the same shall be good and conclude all persons whatsoever.” After giving specific directions as to the manner of executing the process, which it is not important to notice, the lith chapter declares that the act shall continue in force “ for seven years and until the next session of parliament.”

From this act, it will be seen that the remedy and the practice are both created by statute, and that the provision relating to the practice was limited, expiring at the end of seven years. The principle, therefore, attempted to be drawn from it, cannot apply to dower because it grew out of no common law practice applicable to analogous cases, but out of a particular class of cases, not embracing dower within its provisions, inoperative by its own limitation, and never in force in America, having been passed since the 4th year of James I, and relating to an obsolete jurisdiction and practice — which never had an existence in our courts, so far as I have been advised, except in New Jersey. Had this been a contemporaneous common law practice, as seems to have been supposed, (but upon authority independent of this positive statute, which places the question, to my judgment, free from all doubt,) I will proceed to show it originated in a misapprehension of authorities by one Court which I suppose have been quoted without examination. The case of Putman vs. Lewis & wife, 1 Florida 474, is decided without assigning any reason for the opinion given, the Court simply citing authority; therefore it may safely be inferred that that Court made the decision upon the faith of the authority alone. 1 Coke Litt. 167 b, Thomas' Coke, 1 vol. 807, 808, 17 Vesey, and 8 Misso. R. 55, are cited as authority. 8 Missouri cites Thomas’ Coke 807, 808, and decides “That, in proceedings in partition, both at common law and chancery, there are two judgments and decrees.” Upon examination of Thomas’ Coke, we find that no reference whatever is made to chancery proceeding, but that the rule is held as correct only under a statutory remedy and special statutory practice, not under a common law practice. (Eng. Stat., vol 3, 168, note N. Thomas’ Coke 806, 807.) The only other authority cited in the Florida case is 17 Ves. 549. This case, so far from sustaining the doctrine of the two decrees, settles the very reverse to be the practice. The opinion, having been delivered by Lord Eldon, must be taken as high authority. It is as follows: “ This Court issues its commission not under the authority of any act of Parliament, but on account of the extreme difficulty attending, the process of partition at law, where the plaintiff must prove his title as he declares, and also the title of the defendants, and judgment is given according to the respective titles so proven. This is attended with so much difficulty that, by analogy to the jurisdiction of a court of equity in a case of dower, a partition may be obtained by bill. The plaintiff must, however, state, upon the record, hisbwn title and the title of the defendant. "With the view to enable the plaintiff to obtain a judgment for partition, the Court will direct inquiries to ascertain who are, together with him, entitled to the whole subject. If, therefore, the state of the record, as originally framed, is not such as to authorize the Court to say that the plaintiff and the defendants are respectively entitled to distinct shares comprehending the whole' subject, the proper course is to direct a reference to the master to ascertain what are the estates and interests of the plaintiff and the defendants respectively; and if it appear that they or some of them are entitled to the whole, then to order a partition according to the rights of all, or such of them as appear entitled, dismissing the bill as against those who do not appear to have any l’ight.” >

From this opinion of Lord Eldon, it will be perceived that he expressly recognizes the doctrine that, where the rights and interests of the respective parties are ascertained, no reference to the master for that purpose is necessary; but that, in such case, the practice is directly to order a partition according to the rights of the parties or such of them as appear entitled and dismiss as to the others. For, when .he says that when the state of the record is such as not to authorize the Court to say that the plaintiff and defendant are entitled to distinct shares comprehending the whole subject, the proper course is to submit this to the master first to be ascertained, he evidently meant that, if the record did show that they were entitled to distinct interests embracing the whole subject, no such reference need be made, but the Court would proceed at once to decree and order the partition to be made, dismissing .as to those not entitled to partition. Indeed, this is not oniy'the nece’ssary inference from his language, but it will be found that he so e'xpressly declares. There is one fact in the history of this cáse worthy of notice: this was a question as to whether the Court would entertain a bill for partition, and the chancellor, in remarking upon that branch of the subject, expressly recognizes the superior and earlier jurisdiction of the chancery courts over dower.

Thus it is seen that 1 Florida cites 8 Missouri, and 8 Missouri cites Thomas’ Coke, and that Thomas’ Coke, not only does not sustain the opinion in 8 Missouri, but expressly contradicts it, and shows that it was by express statute that the remedy was given, which also regulated the practice, and that 17 Vesey sustains the contrary doctrine. So that neither 1 Florida, nor the authorities referred to, sustains the decision of this Court. The case in 1 Call 51, involves the mere question whether a decree, admitted to be interlocutory by both parties,[could, by consent, be appealed from. Judge Roane, in delivering his opinion, refers to the statute as governing the proceeding, and says, “For example, in a writ of partition, the first judgment is that the sheriff take a jury and make partition between the parties. Now, though in executing this power he absolutely changes the possession of the land, no appeal by our act of Legislature will lie unless a final judgment is rendered upon the return of the sheriff of having executed the writ.” Now how did this sheriff derive his power to take a jury and make partition? .Not by the common law. We have seen that there was no common law right of action, and that the practice of a jury was under the statute of 8 and 9 William, and never in force in the United States. It was, then, of necessity, either under a statute of Virginia, or it was adopted as their chancery practice ; and if the latter, each chancellor has the' same right to have a fact ascertained by a jury, or he may refer it to the master, or to commissioners, or he may, in some instances, perform himself duties in ascertaining facts which he could, at his discretion, have referred to the master. And this accounts, I am persuaded, for the fact that several of the Virginia decision^fe^ÍOTSíSíS^ether reconcilable, upon any other principle, of decisions of our American courts ana) the most distinguished authors on chancery practice. Jj LAW SCHOOul

The case in 2 Wash. 383, was |vh|r^ Jbpj^|ip|^.apt bought the land upon the joint account of mmself and the uj&intiff; the prayer was for partition and conveyaMcey^é'Cfee for plaintiff: an order was made to view the line of division and report. The evident reason why this was not a final decree, was, that the plaintiff acquired no title till conveyance was made; not so in dower: the widow takes no title under the decree, her title is coexistent with her husband’s, and, although held in abeyance during coverture, is liable to be asserted instantly upon his death.

The cases in 3 J. C. Rep. 66, 123, 163, referring to the cases 9, 14, 15, 16 & 18, and 1 J. C. Rep., upon examination, will be found very remotely, in my opinion, to bear upon the question at issue. The case in 1 J. C. R. 77, refers alone to the question whether an appeal supersedes or stays all further proceedings in the Court below; and such will be found the only question presented upon the record in the other cases. I have not failed to examine the other cases in the Virginia Reports cited, although they appear to have been overruled by the same Court in 1 Leigh 124. That in 2 Hen. & Mun. 558, arose upon a question as to whether a judge in vacation had power to grant an appeal. The case of Elzey vs. Lane's ex., 2 Hen. & Mun. 594, has but one important feature in it, the question whether the decree was final was not discussed, but, from a single remark made by Judge Tucker, a clue may be got to the principle governing the decree in mortgage cases. The decree was to sell mortgage lands, and is evidently conditional, that is, it directs the land to be sold unless the money be paid on a day therein named. That this provision was the turning point in the opinion of the Judge, may be inferred from the fact that he not only referred to, but itali-cised, the words of the condition, “unles,” &c.; and, in this manner, the decisions in Virginia may be reconciled, upon this point, with the numerous authorities which would otherwise stand opposed to them.

I am not aware of any other authorities bearing directly upon the point more immediately under consideration. And, from all that are cited in its support, and those to which I have turned my attention, I am satisfied that nothing can be deduced from the practice in the courts of common law in regard to partition and by analogy applied to petitions for dower; nor with regard to the early practice in cases of dower, which will tend materially to sustain the decision that the decree in the case under consideration is interlocutory.

Having thus endeavored to disencumber the question from the inference attempted to be drawn, that it required two separate decrees in cases of dower before a final decision as it did under the statutory practice in the common law courts in cases of partition, I will proceed to the investigation of the main, indeed the only, point directly involved: that is, whether the decree in this case is a final or an interlocutory decree.

In order to determine this, much depends upon the subject matter at issue, the scope and object of the bill, the time and circumstance under which the order or decree is made, the language used in making it and practice of the Court in view of its full and plenary powers in shaping its decrees and orders so as to afford ample redress, governed, however, in determining upon the rights of the parties, by the same rules of law, which control the common law courts, and are no more to be disregarded or overleaped in the one Court than in the other; preserving, at the same time, the most striking analogy between the two courts in the effect and'purpose of their respective proceedings, both in the adjudications upon the rights of the parties, and the process by which those rights are to be restored to the party entitled to enjoy them, (which is truly the end of' the law,) although different powers are conferred and different process may be used in ascertaing the facts upon which the judgment or decree is to be rendered; and also in the process by which the party shall be put into the enjoyment of those rights, marking each step in the progress of the cause by a definite, finite action: which illustrates and recognizes a principle pervading the whole science of pleading, which is, that, when the Court gives its finishing touch to one part of the pleading, it passes directly to another, and on to the final conclusion of the cause, which is the putting the party into the enjoyment of a legal right, and never permits subsequent defects to affect that which has been well done.

Keeping in view these principles, I will proceed to lay down what I understand to be the difference between interlocutory and final orders and decrees. Daniel, in his Treatise on Pleading and Practice, (2 vol. 1192,) says: “An interlocutory decree is where the consideration of the particular question to be determined, or of further directions generally, is reserved to a further hearing; and the further hearing is termed a hearing upon further directions or upon the equity reserved.” This definition is fully sustained by an express recognition of the rule that it is the reservation of further directions which mainly tests the character of the decree in the cases of Thompson vs. Peeble’s heirs, 6 Dana 391. Hoag vs. Mills, 7 Paige 18. Cook vs. Bay, 4 Misso. 485. Harvey vs. Bronson, 1 Leigh 124. Weatherhead vs. James, 2 Ala. R. 176. Whiting et al. vs. United States Bank, 13 Peters 15. And at page 1214, 2 Danl. Ch. Pl. & Pr., it is said: “ That, where the decree is merely interlocutory, and directs an issue, or a case at law, or an enquiry to be made, or an account to be taken by the master, it usually contains a reservation of the further matters to be decided, and generally also of the costs until after the event of the issue or case, or of the enquiry or account, shall be known.” And this definition of an interlocutory decree harmonizes with that of a final decree, given at page 1199, by the same author, when he says : “That where the consideration of the points of equity is not reserved, nor further directions given upon the coming in of the master’s report, the decree is final.” Thus, to my mind, leaving this question settled by a mass of authority rarely to be found so invariably pointing to the same tests, in connexion with the state of the pleadings and the object of the order itself; and, from which, I think it may be safely said that the orders and decrees, which have for their object the ascertainment of facts and points of equity necessary to a proper understanding of the merits of the issue as presented upon the pleadings, are to be considered interlocutory, and are used in some respects as process to bring before the Court the evidences of the points of equity before it mider: the issue, and, in this respect, is, in its nature, assimilated to the common law process for that purpose.

What has already been said in regard to an interlocutory decree, has anticipated and rendered unnecessary much that might be said in regard to a final decree. For, it is evident, that, just at the point where the one stops, the other must, of necessity, commence, and the principal difficulty exists in marking clearly this point and classing the decree under consideration. A final decree is that which does not reserve the consideration of the points of equity arising upon the determination of the legal rights of the parties, or of the further directions consequent upon the coming in of the master’s report or the costs of the suit. (2 Danl. Ch. Pl. & Pr. 1199.) It is that which decides the whole merits of the case, and reserves no further questions or directions for the future judgment of the Court. Mills vs. Hoag, 7 Paige 18. Cook vs. Bay, 4 How. Miss. R. 485.

Lube, in his Equity Pleading, says: “ A final decree is the order of the Court pronounced upon hearing and understanding all the points in issue, and determining all the rights of the parties to the suit according to equity and good conscience.” (Lube 156.) In note 1 of this page, it is remarked: “That the reader will observe a similarity and effect of a decree and judgment at law. They are both the determination of the law upon some matter in controversy between the parties.”

“ A decree is final when it decides all the matters in controversy, and the proceedings, to effectuate it, did not leave it open to revision of the same chancellor by motion.” Larue vs. Larue, 2 Litt. 261.

“ A decree which settles the whole controversy, is final. The order for sale, though not effectuated, was but a ministerial act to effectuate the decree.” Field vs. Ross’ ex., 1 Mon. 137.

“The decree adjusted the rights of the parties, and all that remained to be done was to execute and cany into effect that which had been settled by the Court. The act enjoined on the commissioners, to make partition, was ministerial. We deem such a decree as essentially final as would be a decree directing commissioners to make a conveyance, and report the deed at the next term. Talbot vs. Todd, 7 J. J. Marsh. 459.

“A decree which settles all the rights of the parties except as to the amount of damages, and appoints commissioners to ascertain and report the amount of damages, and gives the directions necessary to dispose of the damages when ascertained and directs costs, is a final decree.” Taylor vs. Reed, 4 Paige 567.

“A decree directing the payment of money, although the amount to be paid is not ascertained, is a final decree. It gives the consequential directions upon the coming in of the master’s report and directs costs.” Coithe vs. Crane, 1 Barbour C. R. 23.

A decree which gives the consequential directions so as finally to dispose of the case upon the coming in and confirmation of the master’s report, by common order in the register without the necessity of bringing the case again before the Court for any other decree or directions, is final, although further proceedings must be had in the master’s office to carry the decree into effect.” Guackenburh vs. Leonard, 10 Paige 136.

A decree which leaves nothing to be done in the cause, no subject to be acted upon or disposed of, is final. And as to the reservations in the decree, those and all similar reservations are simply provisions for the execution of the decree, and not reservations of any points for future consideration. (Harvey vs. Bronson, 1 Leigh 124,) Green, J., in delivering his opinion in this case, admits that the decision in this case is not altogether reconcilable with tbe former decisions of the Court, which is, in effect, overuling the decisions in the earlier Virginia Reports, going to sustain a different doctrine, and reconciles the whole current of American authorities, except perhaps 8 Missouri and 1 Florida Reports.

A decree foreclosing a mortgage, and appointing commissioners to sell, is final.” Graham, &c. vs. Hardin's ex., 4 Dana 559. Hay vs. Shuley, 7 Ohio 48.

Held that, upon the production of evidence or facts upon which a conditional decree was rendered, as it would make no alteration in the decree itself, but merely enabled the Court to direct for what sum the execution should issue, the decree was final. McGowan vs. Collins, 3 N. Car. Rep. 425.

“ A decree is final when it ascertains all the rights of the parties in litigation.” (Wcatherhead vs. James, 2 Ala. R. 116.) “The acts which are to be done, as the decree points out the mode, and settles the principles by which these acts are to be regulated, are, in their character, ministerial, subject, to be sure, to the control and supervision of the chancellor.” Id.

Where all the facts necessary to an adjudication of the whole merits of the controversy were before the Court, and its judgment was just as conclusive, as respects the merits, as though it. had been the last decree in the cause, in order to carry into execution the decree, the master was directed to cause the premises to be appraised and set off to the complainant. ■ It was also necessary, in order to consummate the proceedings, that an order should be taken in respect to the doings of the master. But this order never brings before the chancellor the merits of the former final decree, but simply the regularity of the proceedings of the master. The Court, in other words, examines his doings to ascertain whether its mandate has been obeyed. This last order confirming the acts of the master may be the subject of appeal.” (Benedict vs. Thompson, 2 Michigan R. 302.) The statute of Michigan is precisely such as ours.

“ A decree for sale under mortgage, is final. Marshall, C.J., (3 Cranch 179.) The question was whether the decree of foreclosure and sale is to be considered as the final decree in the sense of a court of equity, and the proceedings on that decree a mere mode of enforcing the rights of the creditor and for the benefit of the debtor: or whether the decree is to be deemed final only after the return and confirmation of the sale by a de-cretal order of the Court. Stout, Justice, after stating the case, said: “We are of opinion that the former is the true view of the matter. The original decree and the sale were final upon the merits of the controversy. The defendant had a right to appeal from that decree as final upon the merits, as soon as it was pronounced. The ulterior proceedings are but a mode of executing the original decree/like the award of an execution at law.” Whiting et al. vs. United States Bank, 13 Pet. 15.

There are still other American authorities bearing on this point; but I apprehend that these are sufficient to settle the character of the decree under consideration, so far as the opinions of our ablest judges may have weight as authority in any caseembracing, as they do, nearly every variety of case known to chancery,jurisdiction. They, to my mind, show most conclusively that, when the merits of the question at issue are brought before the Court and passed upon, and directions given for the the execution thereof, the decree is final, as much so, and to the same extent, as a judgment at law would be upon the issues of fact before a Court of common law jurisdiction.

I do not question, in the slightest degree, that the decretal orders and the report of the master may be modified, corrected, or the subject re-referred to the master or commissioner without affecting the decree upon the merits any more than the setting-aside of a fieri facias, or habere facias possessionem, would affect the judgment at law. And I think the authorities abundantly sustain the position that, where any of the decretal orders for the execution of the' decree upon the merits of the case, are decided contrary to the equitable or legal rights of the parties, the party aggrieved may appeal from such decision, just as he could in a Court of law where his process for the execution of judgment in that Court was quashed improperly. This question was improperly settled in the case of Benedict vs. Thompson, 2 Michigan R. 306.

It only remains for me to apply these principles to the case under consideration.

The complainant asserted title to dower in three lots of land, as the widow of Robert Crittenden, and also in the rents and profits therein from the death of her husband, and prayed that the facts being heard she be decreed dower in the lots and rents and profits. To this petition there was an answer and replication. Exhibits were filed and depositions taken in support of the issue, and the case came on to be heard upon the bill, answer, replication, exhibits and depositions. The whole issue involved á few plain, definite points: 1st. That the complainant was the widow: 2d. That her husband was, during cover-ture, seized in fee of the lots: 3d. The identity of the lots, and the defendant’s possession: 4th. The rents and profits since the death of her husband. (The law fixed, the amount of dower.) The answer fully admitted the 1st and 3d points, but denied the 2d, and, as a necessary consequence, her right to dower: leaving, in fact, but two questions open, that is, whether the husband was of not seized during coverture, and whether complainant was entitled to dower in the rents and profits; and, if so, how much. Upon these points, depositions and exhibits were used in evidence. The Court, after hearing the whole of the facts at issue and the argument, decreed that “ The petitioner be assigned dower in said lots, amounting to one-third part thereof, for and during her natural life, and that the said defendant pay to the said petitioner the sum of six hundred and sixty-six dollars, the one-third part of the rents, issues, and profits of said lots, which, by the proofs in the cause, have accrued since the death of the said Robert Crittenden to this time. And that Benjamin Johnson, Nicholas Peay, and Peter T. Crutchfield be, and they are hereby, appointed commissioners to proceed to the premises, and, by actual survey and admeasurement, to lay off and ascertain the boundary line of such dower in said lots and buildings thereon; and to take an account of the rents, issues, and profits accruing to the said defendant from said lots from this time until the next term of this Court, and add one-third thereof to the sum above decreed to be paid. And that said commissioners make return of their proceedings to the next term of this Court, to which term this cause is continued.”

Let us pause for a moment to enquire what fact or point of equity in this issue remained undetermined. It could not be that petitioner was the widow, nor in regard to the identity or minute description of the lots, nor that defendant was in possession, and, too, under the deed of the husband. These facts were all admitted by the answer: and, as the affirmative fact set up in the answer, that the husband only held in naked trust, and in regard to rents and profits, these points were fully before the chancellor in proof. All the facts, then, I apprehend, and every point of equity which could arise, was before the Court, and passed upon. Nothing was reserved for further consideration, nor indeed could any have been reserved unless it be costs, (to which I will refer soon.) These facts having been presented and passed upon, it is perfectly immaterial, so far as this question is concerned, whether they were correctly decided or not. The decree was final until reversed or set aside. But it is contended that no costs were decreed. That is a mere circumstance, which only tends to indicate the intention of the Court at the time the decree is rendered, and if not provided is lost. The decree is just as final without as with the decree for costs. Travis vs. Waters, 1 J. C. R. 88. Story vs. Livingston, 13 Pet. 368.

But it is contended that the decree was not final, because the particular third-part had not .been ascertained by metes and bounds, and that the same principle applies in this case as in bills for partition. I have already shown that the practice in partition depended upon a special statute of England never in force in America, and therefore wholly inapplicable; but it is so for another reason: in partition, the parties acquired their titles after the coming in of the commissioner’s report, when, if there is no exception, the order is made in affirmance, and mutual conveyances directed to each for his separate estate, for the purpose of vesting an absolute legal title in them. And this is held to be necessary because by a petition in equity the equitable right only is vested. (2 Danl. Ch. Pl. & Pr. 1339.) In New York’ there is an express statute obviating this difficulty in decrees in chancery, declaring that the property pass in fee by the decree. (Young vs. Cooper, 3 J. C. R. 295.) Our statute is like that of New York, and no doubt intended to obviate the same inconvenience. Digest 241, sec. 120, declares: “That decrees for the conveyance of real estate, or for personal property, shall pass the title to such estate or property without any act to be done on the part of the defendant.” Therefore, conceding this to be really a case of partition, independent of the numerous authorities to which I have referred, the decree would be final.

But there is a marked distinction between dower rights and partition, which I think places this point beyond all controversy. The widow acquires no new freehold under the decree, but is in by her husband, her seizen being deemed in law to be a continuation of her husband’s seizen. (4 Greenl. R. 67. 3 Blackf. 1. 1 Pick. 314. 23 id. 88. Park on Dower 153.) In the case of Windham vs. Portland, (4 Mass. 388.) it was held, “That, when the assignment is made, the widow acquires no new freehold, but is in by her husband, her seizen being deemed a continuation of his.” This position must, therefore, fall for either of the reasons above, independent of that clear and, to my mind, well defined principle, which is recognized so repeatedly, that the partition is a mere ministerial act, to put the party into the enjoyment of a legal right ascertained and adjudged to her. The case of Larue vs. Larue, (2 Litt. Rep.,) is far stronger than this. The rights of the parties were declared by the decree, and commissioners appointed to convey, but no title passed under the decree until conveyance, (Kentucky has no statute like ours,) and yet that Court said, “ The decree was final as to the whole contest. All that could have lead to the supposition that the decree was interlocutory and not final, was that the conveyances directed were not made, and a commissioner appointed for that purpose. All that this commissioner had to do was ministerially to carry the decree into effect. As well might it be said that if the decree was for money, and the party obtaining it had not coerced the payment by process of contempt, that the decree was not final.” And to the same effect are the decisions in New York, Mississippi, Alabama, North Carolina, Ohio, and Michigan, sustained by Chief Justice Marshall and Justice Story, if not in precise language, most decidedly in the principle, that after-acts, in obedience to the decretal order, are ministerial. Suppose, however, that the commissioners should report in this case, what would be the action of the Court? What consequential order was there reserved for further consideration? What effect could the report, in any event, have upon the rights settled in the decree ? It is difficult to conceive. Will it be said that the Circuit Court anticipated something that might arise ? What could it have been? And if such apprehension was entertained by tjie Court, why was not the decree shaped to meet it? Or if there existed some vague, dreamy apprehension, indefinable and therefore not to be expressed, at least a reservation of further consideration should have been made.

This question, when submitted to the following test, is, to my mind, conclusive. The report of the commissioners, when received, must either be used as evidence of some necessary fact to enable the Court to render a final decree, or it must furnish materials for a second decree; and if for the first purpose, we must pre-suppose that something was left unfinished and reserved for further action when the report furnishing such evidence should be made. A single glance at the decree in this case shows that no fact remained to be ascertained when it was made in order to enable the Court to pass upon all the rights at issue between the parties. Indeed the report, be what it might, could furnish no such evidence, nor was the report ordered for that purpose: nor was it for the purpose of making any further decree, because, as I have shown, no action is necessary on the part of the Court to confer title to the particular portion so to be set apart by the commissioners. The simple fact of approving and ordering the report to be filed being all-sufficient, or if the order had not been properly executed, to direct a new commission until the decree is executed.

It does appear to me that a more clear and definite subject for decree can scarcely be conceived than the one before us. Nor is it often to be found that the decree itself is so definite, not alone in passing upon all the equities of the case, but in giving all the consequential directions for the execution of the decree, so definitive in detail that the Court, not instructed in regard to the rents between the decree and the coming of the report, directed its division and then the disposition to be made of it. Why this circumstantial direction, if further decree was to be had ? And if any further should be found necessary, would that direction tend to affect the final character of the decree any more than the issuance of another writ would in common law proceedings ? — ever bearing in mind that the chancellor, as he created, has the same power to change or modify his process to suit the emergencies of each case.

I have been wholly unable to draw the distinction which is made between this and all other cases within the range of chancery jurisdiction. To my mind, they all stand upon the same clear and well-defined principles and rules of practice, in spirit and purpose strongly assimilated to proceedings at law, according to the chancellor the power, with a plastic hand, to shape and mould his remedy to suit the peculiar circumstances of each case.

A different view from that which I have taken, must tend to delay the administration of justice by requiring the litigant, who is aggrieved by the judgment and decision of the Court, to wait until all the reports have been made and the decretal orders executed, before he is allowed to controvert the correctness of a decision which, if erroneous, nullifies all that is subsequently done.

With the utmost deference and respect for the opinion of the Court in this case, and, after the most mature deliberation, having been unable to arrive at the same conclusion to which they have, in obedience to the statute, I have presented my individual views, upon which I entertain no doubt. But, even if I did, although I should ordinarily most cheerfully acquiesce in the opinion of my brother Judges, I could not consent to do so in a case like the present, where, in doing so, I must overrule a former decision of this Court in every respect in point; for I hold it to be the duty of the Court never to reverse one of its decisions when it is doubtful only whether it is correct or not.

I think, therefore, that a Mandamus should issue in this case requiring the Circuit Court to proceed to execute the decree rendered by the Circuit Court herein.

The petitioner filed a petition for reconsideration, which was not granted by the Court.

Scott, J.

On the application for reconsideration.

I have read, with care and attention, the petition, and have considered of the matters urged. My opinion in this case, which is against my first impressions, was by no means hastily formed; nor was it formed until upon proper reflection after much toil and research. And, during the few weeks which have elapsed since its • delivery, my mind has occasionally reverted to its grounds; as is habitual with me on subjects on which my mental powers have been severely taxed. Butnothing that has now been offered, nor which has occurred to me by the suggestion of my own mind, is of sufficient import, in my judgment, to shake the propriety of those conclusions.

It is therefore, although I doubt not that the learned counsel is deeply, thoroughly, and sincerely convinced of the merits of this application, that I cannot hesitate, so far as I am concerned, to give it my refusal. And feeling, as I do, that, in all its stages, I have given to the consideration of this case my best judgment, and, being unable to perceive that I have erred, I adhere to the opinion that I have, already given with unfaltering confidence.  