
    Mackey, Executor of Fuqua, v. Bell, Surviving Partner of James Byrne and Co.
    Thursday, December 12th, 1811.
    i. Decrees — When Interlocutory. — A decree, though deciding the right to the property in controversy, and awarding the costs of suit, is still only interlocutory, if commissioners be appointed to carry it into effect, and the court have yet to act upon their report. Neither does it cease to be interlocutory, in consequence of an order that the defendant be attached for failing to comply with
    See M’Call y. Peachy, 1 Call, 55; President,' &c. of William and Mary College v. Lee’s Executors, 2 H. & M. 557. and Goodwin v. Miller, ante, 42.
    2. BUI of Review.  — A bill of review lies only to a fí.nd.1 dccrCG
    See Bowyer, &c. v. Lewis, 1 II. & M. 553; Banks v. Anderson, &c., 2 H. & M. 20, and Ellzey v. Lane’s Executrix, id. 589.
    This was a suit in chancery in the county court of Charlotte on behalf of James M’Clellan and James Byrne, & Co. against Thomas Mackey, executor of Samuel Puqua.
    *The plaintiffs, being creditors of a certain Christopher Irvine, of Halifax county, obtained of him a bill of sale for sundry slaves and personal property, dated the 8th of May, 1792, and admitted to record the 24th day of December, in the same year. The terms of the bill of sale purported an absolute conveyance of the property, whereof the grantor, nevertheless, retained possession. Irvine having attempted to run away from his creditors, Mackey, to whom, as executor of Buqua, he was indebted, pursued him, and obtained a bill of sale for part of the same property, dated December 18th, 1792; to set aside which was the object of this suit.
    On the 9th of November, 1796, the county court decreed that the defendant deliver up to the plaintiffs the property mentioned in the last bill of sale; appointed commissioners to ascertain the value thereof since the same had been in the possession of the defendant; directed the defendant to pay such value to the plaintiffs; and that the commissioners, after giving thirty days’ public notice, do sell the said property at public auction, for ready money, and out of the sales and the said hire or value, pay to the plaintiffs, James Byrne & Co. and James M’Clellan, the amount of their claims, respectively, with interest till payment ‘‘and the costs of suit,” and the residue, if any, pay the defendant, towards the discharge of his claim against the said Irvine; ‘‘and make report thereof to the court, and state any matter specially that may be offered by the parties, in order that a final decree maj' be made in this cause.”
    On the 6th of May, 1805, the commissioners reported that the defendant refused to deliver the property mentioned in the decree; whereupon the defendant was summoned to show cause for such refusal; and, in August following, no cause being shown, “it was ordered that he be attached for the said contempt until he comply with the said decree.”
    
      
       Decrees--When Interlocutory. — On this subject, see foot-note to Goodwin v. Miller, 2 Munf. 42, and other notes in this series of reports there cited.
      The-principal case was cited on the subject in Alexander v. Coleman, 6 Munf. 338; Cocke v. Gilpin, 1 Rob. 35, 53; Manion v. Fahy, 11 W. Va. 493; foot-note to Fleming v. Bolling, 8 Gratt. 293, containing excerpt from Manion v. Fahy, 11 W. Va. 493; State v. Hays, 30 W. Va. 120, 3 S. E. Rep. 184.
    
    
      
       Bill of Review. — See monographic note on “Bills of Review” appended to Campbell v. Campbell, 22 Gratt. 649. The principal case was cited in Miller v. Cook, 77 Va. 819.
    
   *In November, 1805, Mackey was permitted to file a bill of review, which afterwards (viz. December 2d, 1806) was ordered to be dismissed; and that order being affirmed by the superior court of chancery, he again appealed to this court; •where the following opinion was pronounced the 12th of December, 1811.

“The court (although of opinion, that the decree of the county court, sought to be reviewed, being founded upon an absolute bill of sale of slaves, and other personal estate, the possession whereof remained with the grantor, was erroneous upon the merits) is yet of opinion, that a bill of review did not lie in the case; the said decree being interlocutory only. On this ground, the court approves the decree of the said county court, .dismissing the bill of review; as well as that of the superior court of chancery, affirming the same; although both the said decrees may have resulted from a consideration of the' merits of the bill of review, instead of being predicated on the ground now taken by this court. ’ ’

Decree affirmed, and 'cause remanded to the said court of chancery, and from thence to the county court, to be proceeded in to a final decree. 
      
       Note. See Alexander v. Deneale, ante; and Hardaway v. Manson, ante, p. 233.
     