
    Benjamin A. Putman, Executor of Peter Mitchell, vs. John H. Lewis, et ux.
    Under the laws of this State, no appeal will lie from an interlocutory' decree.
    A decree for the partition of land, passed by consent, ascertaining the interest of the respective parties, and appointing commissioners to make-partition of the land according to their respective rights and interest as thferein ascertained by the Court and established by the decree, who were ordered, after having made such partition, to rep'ort the same in writing to the Court without delay, is not a final but an interlocutory decree, from which no appeal will lie.
    A supplemental Bill in the nature of a Bill of Review, or possibly an original Bill, and not a Bill of Review, is the appropriate remedy by which to have such interlocutory decree reviewed or reversed.
    Appeal from St. Johns County.
    This was an appeal from a decree rendered by his Honor Judge Hawkins, at Spring Term, 1846, of St. Johns Circuit Court.
    A petition was filed in the Court below for leave to file a Bill of Review for the purpose of having a certain decree for the partition of the “ Arredondo Grant,” rendered at June Term, 1845, reviewed, reversed and set aside so far as defendants, John H. Lewis and wife, who'were parties and claimants under the-said decree, were concerned.
    The petition alleged that petitioner had been lulled into security by the letters and declarations of John H. Lewis, that he had no de. sign to-assail the claim of Peter Mitchel, his testator, until about the time the cause came on for a hearing, when it was too late to make any effectual resistance : That being taken by surprise when the >vhole claim of Peter Mitchell in the said grant was most unjustly and unexpectedly assailed by said Lewis and wife, he was forced to submit to a compromise with the said Lewis and wife ; and that he, under these circumstances, had consented to the said decree : That since the rendition of the said decree, newly discovered evidence had come to his knowledge, which clearly showed the injustice of the claim then set up by Lewis and wile, by which they had acquired under the said decree a much larger share or portion of said grant than they were legally and equitably entitled to, and which should in equity and justice have been decreed to petitioner, whose claim had been proportionably diminished thereby.
    The petition was sworn to, and recited at length the facts and circumstances on which petitioner relied, and was accompanied by numerous exhibits.
    The decree for partition sought to be reviewed and reversed, so far as the defendants Lewis and wife were interested therein, was made at June Term, 1845, with the consent of all parties. It ascertained and settled the rights and interest of each of the parties in the said grant, and appointed commissioners to make partition thereof in accordance with the decree, who, after having done so, were directed to “ report the same in writing to this Court without delay.”
    On a motion to dismiss the petition, it was ordered, adjudged and decreed,that the said motion to dismiss the said petition be granted, and that the prayer in the said petition contained for leave to file said Bill of Review be, and the same is hereby, denied and refused, with costs to said Lewis and wife.”
    From this order of the Court, petitioner appealed.
    The following errors were assigned :
    
      1. The petitioner having set forth as the ground for a Bill of Re* view that, new matter had come to the knowledge of the petitioner since the rendition and enrolment of the decree, of the existence of which the petitioner was ignorant at the time of the rendering and enrolling said decree, and which he could not have used or by any reasonable diligence have obtained at the hearing of said cause; and which said new matter is important and material to the issue, and would have materially altered the decree if it could have been ad. duced on the hearing of said cause, and that said new matter was in writing; the motion to dismiss should have been overruled and the petition granted. '
    2. That the matters alleged in said petition having been verified by affidavit, and not denied by answer under oath, the petition could not be dismissed on motion.
    3. That the petitioner showed by his petition, that he was taken by surprise, and from necessity made the consent on which said decree was founded, being ignorant of the facts since discovered essen* tial to the proper exercise of his discretion, and which, if true, entitle him to a review of said decree.
    4. That the said Court refused to grant said petition principally on the ground that said decree sought to be reviewed was entered by Gonsent; whereas, the petition sworn to shows that if such was the case, yet that the petitioner was deceived and imposed upon by the said John H. Lewis ; and from the necessity in which the petitioner was placed, he submitted to the compromise and arrangement on which said decree was founded, being ignorant of the new and material evidence now presented, which at the time of the consent was not within his knowledge, but which has come to his knowledge since the hearing of the cause.
    
      Thomas Randall, for appellant s
    After stating the facts of the case, as disclosed by the record, argued the errors assigned, insisting—
    That the materiality of the new evidence disclosed would be tested by the inquiry, “ Whether it were possible that if the appellant had been in posssession, at the time of the decree rendered, of the evidence exhibited with this petition, he could ever have consented to the decree in question 1” And next, “ Whether, if the claim of ihe appellee had been advanced in behalf of Mrs. Lewis, in the face of the evidence newly discovered now adduced, it could for one moment have been countenanced by a Court of Equity ?”
    After commenting upon the evidence in the record, he cited Lord* Bacon’s Ordinance in Chancery, (Cooper’s Pleading, 89), as the ground of the rule requiring application, “ for the special license of the Court ” to file a bill of review, and Lord Hardwicke’s re-assertion of the same ordinance with an additional requisition by order of Oct., 1741. 2 Atkyn’s Rep., 139. And he alleged—
    1st. That the petition shows most clearly that the petitioner in consenting to the decree, “ was taken by surprise, and from necessity and in ignorance of facts since discovered essential to the proper exercise of his discretion,” was betrayed into such consent.
    2d. That petitioner was deceived and imposed upon by the defendant, John H. Lewis, and that petitioner submitted to the compromise and arrangement under which the decree was founded, in ignorance of material facts, while there has been a studied suppression and concealment on the other side.
    If the Court is satisfied on these points, then our case comes within the rule, and as a case of extreme hardship on the part of the appellant, and of unmerited success on the part of his adversary, the present application commends itself to the favorable consideration of the Court.
    The Court (he said) desired argument upon the point, “ Whether the judgment or decree rendered in the Court below in dismissing the petition for leave to file a bill of review, be such a final decree as justified the appeal?” Final it certainly is, in its effect — a final determination of our right to relief in the mode sought; and he submitted whether or not, as this “ license of the Court ” was an assen-tial to the obtention of relief, the withholding the means be not equivalent to denying the end ? If the door be shut against our entrance into the sanctuary of justice, is it not the same in result as if having gained admission, our prayer had been denied ? Before the Court below could thus summarily dismiss our petition, it must have decided in advance, that the same showing made in a bill of review, would not entitle the applicant to the relief sought. To him, therefore, the present decree dismissing his petition, is as final and as fatal as would be a decree dismissing a bill of review. Nay, this further hardship results, he is not permitted even to appeal to the conscience of the other party, who thus escapes the ordeal provided for the exposure of fraud and detection of imposition.
    But it will be argued on the other side, that the question refers back to the original decree of partition sought to be reviewed, and that that decree is not a final decree. Whether we confine our attention to the order of dismissal of our petition, or look back to the decree of 1845, in either aspect it becomes important to regard our statute regulating appeals. (Duval, p. 109.) We contend that the case of the appellant comes clearly within the letter as well as the spirit of the statute, — “ If a party shall feel aggrieved by a final judgment, sentence or decree,” &c. And although there is nothing which would seem to us to require the Court to go beyond the immediate judgment and decree appealed from, which must be conceded to be final, yet we contend on reason and authority that a like final character is impressed on the decree of partition itself. Pp. 24 to 35 of the record.
    In this bill of partition, agreeably to rules of Equity Practice, two questions were involved mainly and specifically.
    1st. The number and names of the tenants in common and the quality of their estates.
    2d. The quantity of their respective estates in the whole tract.
    These were the chief matters of equitable and judicial cognizance, properly speaking. All else was the consequence — the means of effectuating the decree : ministerial and not judicial acts. After ascertaining the various interests and settling the rights of the respective litigants, the judicial power of the Court was exhausted; and the decree is therefore final as to the results involved. The namirig commissioners — the ordering surveys — are ministerial acts, and subject to the future control and supervision of the Court: these are the executing the decree.
    
    As to what constitutes a final decree, he cited — 1 Barbour’s Ch’y» Prac., 330-1-2-3. 2d Daniel’s Ch’y., 175, 638. 1 Harrison’s Ch’y. Prac., 420. Mills vs. Hoag, 7 Paige, 18. Story’s Equity Plead., sec. 408. Field vs. Ross, 1 Monroe, 137. Seaton on Decrees, 382. 2 Bligh’s Rep., 263. 7 Yes., 222. 1 McCord, b. Rep., 32. 4 Paige’s Ch’y. Rep., 561. In Leigh’s Va. Rep., 108, Harvey vs. Bronson, the Court will find a strong case, strikingly analogous to that at bar. Also, we cite Taylor vs. Royall’s Adrar., 1 Rand., 421»
    
      We are next met by the objection, urged as an estoppel, that the decree of which we now complain, was entered up with the express consent in writing of the appellant himself. As this is a material point in the case, and is believed to have been the ground on which the learned Judge in the Court below dismissed the petition, it has received full consideration at our hands.
    Certainly a hasty examination of some of the cases might lead to the idea of the conclusiveness of this objection, but a more careful investigation and estimate of the weight of authority, will serve to convince us that an undue importance has been ascribed to the mére circumstance of consent. In 2 Smith’s Ch’y. Frac., 50, it is laid down that “ if a decree has been taken by consent, a bill of review will not lie against it, for 1 consensus tollit errorem.’ ” For this broad doctrine a single authority is cited — Webb vs. Webb, 3 Swanston, 658 — a case which we will examine. The Court will note, a consent there after great deliberation, to put a stop to family feuds : a settlement purely equitable and just — not impeached for fraud, or advantage, or surprise, or concealment — not for newly discovered matter, nor upon any other legitimate ground for bill of review. In the absence of all these occasions for reviewing the decree, the prominent fact of consent given — a consent not impeached — seems to have furnished the readiest answer ; and a rule in a special case — thus commending itself to the Court, it has been sought to have extended to a universal application. For a like citation in Mitford, p. 94, a single case from Ambler, Bradish vs. Gee, stands as the sole support. That was a case of consent made by counsel. The remedy of the party was declared to be against his counsel. There was no allegation of fraud or covin, surprise or other ground of interference, the consent remaining unimpeached. It is true that the Lord Chancellor does state hypothetically, that “ if the decree was by fraud and covin, the party may be relieved against it, not by rehearing or appeal, but by original bill.” And it is this negative, wherein the val„ue of the .authority consists, in the eyes of our adversaries. For this dictum, however, two authorities are cited — Richmond vs. Tailleur, 1 P. Wms., 734-5. Lloyd vs. Mansel, 2 P. Wms., 73.
    It is not too bold in us to say, that that negative cannot be established by those cases. They establish affirmatively that an original bill would not lie to set aside a decree by consent upon the fraud imputed in the first case ; and in the second, that a decree by consent obtained by fraud, not denied in the answer, was set aside upon original bill.' If then, Lord Hardwicke is not supported by the authorities he invokes, what force can be given to the assertion, not pronounced upon the authority of his own great name, nor necessarily arising in the cause before him ? In Lloyd vs. Mansel, Lord Mac-clesfield granted the relief, (as he says), notwithstanding the objection urged that, “ according to this rule, a decree might be set aside by original bill,” thus showing this course to be the exception and not the rule, and predicating the answer to the objection upon “the gross fraud ” — “ an abuse of the Court, and sufficient to set any decree aside.”
    In Hicks vs. Conyers, M. S. Rep., 7 Viner’s Abridg.,,398, Cowper, Ch’r., declares, “ It is irregular to bring a new bill to alter and vary a decree already pronounced,” &c. Again, “ by the course of the court, if the original decree had been inrolled, the now plaintiff, upon affidavit of new matter come to his knowledge since the former decree, might have a bill of remew, but he cannot now be relieved against the former decree by this new bill and rehearing the former cause ; for the decree is right upon the pleadings and proof in the cause, and therefore cannot be varied upon a rehearing ; and the now plaintiff cannot be relieved upon his new bill, because it is contrary to the course of ihe/ Court to alter a decree upon a new original bill exhibited after the decree pronounced ” This case exhibits clearly the true bearing of the decision of Lord Macclesfield above cited. Another casé relied on is Harrisonws. Ramsey, 2 Vesey, Sen., 488, A. D. 1752. That was a case of consent by counsel, against whom the party had recourse. Yet the Lord Chancellor, though he refuses the application, says — “If they could prove collusion against the counsel, it would be a different thing.” Next, it is to be noted that there was no allegation of fraud or surprise — none of new evidence; but on the contrary, the editor and commentater, (Mr. Belt), in his supplement says, “ the Court proceeded on the idea that the decree by consent was for the benefit of the infant, the party impeaching it.” Again, the case is professedly founded on Bradish vs. Gee, in Ambler, and upon another cited, yet less reliable, viz., Norcott vs. Nor-eott, 7 Viner’s Ab., 398. This case is reported at large in Colle’s Parliamentary Reports, which we exhibit to the Court to speak for itself, as conclusively showing that the comment in Viner is as unwarranted as it is vague. These embrace all the cases of conclu. siveness of consent. Now let us examine the authorities on the other side.
    I refer the Court'to Butterfield vs. Butterfield, 1 Ves., Sen’r., 133, 154. 3 Ves., Sen’r., (Belt’s Suppl’t.) S. C. Here was au express decision that a decree by consent might be “ set aside on appeal or after re-hearing.” In Burnesby vs. Powell, 1 Ves., Sen., 119 and 283, the Court not only set aside a consent by a party, but also judgments or decrees of the Exchequer and Ecclesiastical Courts, which they could not directly review or reverse.
    In order to show the disposition with which Courts of Equity proceed to defeat schemes of fraud, I cite — 1 Molloy, 472 ; Lord Chancellor holding that there is no rule of Court not flexible to justice. 2 Eden’s Rep., 115. 2 Schoale & Lefroy, 666. Also, 1 P. Wms., 128.
    On the main point of consent, I cite also — 4 Russel], 142. 1 Brown, C. C., 484, which latter case clearly establishes that there is nothing conclusive in the consent, but that it may be explained and its reasonableness examined into. In Gould vs. Tancred, 2 Atkyn’s 533, the leave to file such bill of review was refused upon grounds which repudiate the doctrine of the conclusiveness of the consent given ; for the Lord Chancellor, speaking of the newly discovered evidence, declares, “ this is a proper ground for a bill of review, supposing the evidence came up to it,” &c.
    Buck vs. Fawcett, 3 P. Wms., 242, has been sought to be wrested from us, who claim it as an authority in our favour, by an interpretation put upon the language of the Lord Chancellor opposed, as we think, to the plain meaning. The party petitioning for a rehearing had entered into “ an order by consent to submit to the decree and not to appeal.”' Notwithstanding, Lord King, who made the decree, allowed a re-hearing, which his successor, Lord Talbott, refused to vacate. On the occasion of such refusal, he s%ys, “ This order is of a very, singular nature, insomuch that had the agreement been disclosed to the Court, I hardly believe such order would have Toeen made.”
    Our opponents attempt to ascribe the language of Lord Talbot, “ this order is of a very singular nature,” &c., to the order for re-bearing, whereas it is very plain he refers to “ the order by consent to submit to the decree and not to appeal .” Had that agreement been disclosed to the Court at the time of entering the decree, Lord King would never have made it. There was nothing singular in an order for re-hearing; there was nothing even opposed to the consent not to appeal. And had the order for a re-hearing been considered so singular, why did not Lord Talbot discharge it 1 On the contrary, he says it is “ fitting the Court should have the opportunity of amending itand yet “ more reasonable ” in this case, in view of the action of his predecessor. The reporter seems thus to have considered the true reading of the decision as shown in the marginal note. We hold this case as a clear instance of the reversibility of decrees by consent. There it was before decree enrolled — here, application is made after. The mode of relief is different, but the right to it stands on the same fSbting.
    I cite also, Earl Portsmouth vs. Effingham, 1 Ves., Sen., 430. Cann vs. Cann, 1 P. Williams, 723, 727. In this last case, though declining to interfere under its peculiar circumstances, he yet excepts cases of “ ignorance and concealment,” which he admits would invalidate the consent and all rights accruing from it; an exception sustained, we think, by authority, and upon principles of equity and natural justice. See Brodereck vs. Brodereck, 1 P. Wms., 240.
    A case in principle, as well as in detail, strikingly like that at bar, we find quoted in 2 Wheeler’s Am. Ch. Dig., p. 472. It is the case of Broaddus vs. Broaddus, 3 Dana, 526, where, in case of deception, it is declared that “ the Court skould'at any time it has power over the cause, reinstate the parties and admit the defence.”
    But it is alleged that our relief is only by original bill and not by bill of review. If the authorities already cited do not sufficiently point to this as the proper remedy, we' would cite also — Wormley vs. Birkhead, 3 Atkyn’s, 309. Dexter vs. Arnold, 5 Mason, 304. Story’s Eq. Plead., sec 412, 413. Also, 421, 422.
    On the subject of parties we cite — Story’s Eq. Plead., 428. 1 Leigh’s Rep., 108 and 121. Calvort on Parties, &c., p. 15, and 48th Rule of Practice of Courts of Equity in U. S.
    We have made all those parties whose rights we seek to affect— all with whom any controversy exists.
    
      
      Carmack & Baker, for Appellee:
    1. The granting a bill of review upon new matter is within the discretion of the Court. 2 Mad. Chy. Pr., 710. Story Eq. PL, sec. 417, and cases cited in note, especially Dexter'vs. Arnold. 5 Ma. son Rep., .315. 2 Bar. Chy. Pr., 93.
    2. Appeals cannot be taken from decisions of the Court, made in the exercise of sound discretion, as distinguished from strict right. Armstrong vs. Wright, 1 Hawks N. C. Rep., 93, 94. Burkett vs. Burkett, 2 Howard, 240.
    3. A bill of review will only lie from a final decree. Story Eq. PL, sec. 408, a. 2 Bar. Chy. Pr., 93.
    4. The decree in this case was not final, and could not be until the return of the commissioners’ report, and a decree of confirmation thereon. Sess. Acts of 1844, p. 23, sec. 6.
    5. No rehearing or review can be had from a decríe entered up by consent. 2 Mad. Chy. Pr., 712. 2 Smith’s Chy. Pr., 50. 1 Barb.' Chy. Pr., 867. Webb vs. Webb, 3 Swanst., 658. Harrison vs. Ramsay, 2 Vesey, 488. Bradish vs. Gee, Ambler, 229. King vs. Wightman, 1 Anstruther, 80. Toder vs. Sansome, 7 Brown’s Par. Cas., 244. Wall vs. Bushley, 1 Brown’s Chy. Cas., 484. Morell vs. Lawrence, et al., 12 John., 521. Waltonys. Harris, 20 Wend., 563. Atkinson vs. Maups, 1 Cow., 709. Ringgold’s case, 1 Bland., 5,12. Syke vs. Lewellen, Wend., 18. McKim vs. Thompson, lb., 270. ' Jones, et al., vs. Tollicoffer, 1 Car. Law Rep., 376. Bar. &; Har. Eq. Dig. 4. Bridgman’s Equity Digest, 143, sec. 5,6.
    T. H. Hagner, for appellant, in reply said, that he proposed brief, ly to exhibit the circumstances under which the consent decree was made, the facts as then disclosed, and the newly discovered evidence whereon is grounded the prayer for the intervention of the Court. This proceeding for partition of the Arredondo Grant, in its inception, was an amicable proceeding as between the parties to this record. The claim of the appellant was for one fourth of the whole ' grant; the evidence of his claim a deed from Arredondo & Son, da. ted 21 Jan., 1822, declared on its face to have been made pursuant to a contract entered into in 18Í8, the next year after the grant was made. This claim of the estate of Peter Mitchell had been recognized by the appellees. In a letter of 19 Sept., 1843, (pp. 18, 19, of record), John H. Lewis declares to Benj. A. Putnam, the Executor, “I have been long aware of Mr. P. Mitchell’s claim, and am satisfied as to its justice and again, in the same letter, “ Peter Mitch, ell claimed under deed from the Arredondos say 70,000 acresand again, “ I have no design to throw any impediment in the way of Mitchell’s heirs.” And, as is shown in the record, this very proceeding for partition was the result of the united friendly action, as made to appear at the time, of the appellee, John H. Lewis, and the ap-, pellant.
    On the 15th March, 1821, Arredondo & Son sold 144,822-J acres of the grant to Jasper Ward — (pp. 11, 12, of record). The agreement does not appear to have been signed by Sam’l. H. Betts, under whom the appellees claim, but by the Arredondos, whose partner Betts is alleged to have been. The appellant had no evidence at any time before the decree in this case,'that Betts had assented either to the sale to Ward or to that to Peter Mitchell; nor was such evidence called for had good faith been kept between the parties. The claim set up by Lewis and wife had been-known to be 15,000 acres of land, conveyed by F. Arredondo on 15th Dec., 1831, under an arrangement between them, declared in the deed to be “ a full and satisfactory arrangement by which a final settlement has been effected between the said Arredondo and the said Lewis and wife, heirs and representatives of Betts.” And this 15,000 acres is alleged to be given and received in release and acquittance of all and every claim which the said Lewis and wife “ may now, or at any time •might or could, have to any part, share or interest of, in or to the results of the said mercantile house of F. M. Arredondo & Son, as the representatives of the said Samuel H. Betts, deceased, a partner of said house, as well as to any further claim io any part or portion of said grant.” Pp. 14, 15, of record.
    The appellant, as Executor of Mitchell, assured by the repeated recognitions of his claim, without suspicion of the truthfulness of the frequent reiterations by Lewis of the absence of all design to throw any impediment in the way of Mitchell’s heirs; seeing that the limited extent of the claim of Lewis and wife forbade the idea of any •conflict from that quarter; knowing that there was no other claimant who could molest him, felt that his cage was sufficiently made out — even in the absence of the contract of 1818, recited in the deed to Peter Mitchell, which contract had been lost or destroyed. While such was the character of this proceeding, Lewis and wife filed their answers to the hill denying generally the titles of Mitchell and Ward ; yet, even after their answers, lest they might awaken suspicion of hostility, renewed protestations are conveyed to the appellant of the sincerity of Lewis — of the absence of all design on his part to interfere with the interests of Peter Mitchell’s estate. But what was his consternation when, on the trial of the cause, he discovered that all these protestations were unmeaning words, and that the Executor was now called upon to make proof of his claim as against the representatives of Samuel H. Betts, — they insisting that Betts was a full partner of Arredondo & Son; as such, entitled to one-third of the whole grant; denying that he had ever joined in the sales to Mitchell and Ward, and demanding then and there proof of both. The appellant was thus completely at the mercy of John H. Lewis; and to save any part of the land to the estate of his testator, was forced into a concession, without equivalent, of upwards of 30,000 acres of land, while Lewis and wife unjustly acquired, by his adroit management, 45,000 acres over and beyond what they were fairly and legally entitled to.
    The Court will see that the whole case, at the time of this forced consent, turned upon the point, whether Betts, being a partner in the house of Arredondo and Son, did or did not assent to the deeds to Peter Mitchell and to the sale to Jasper Ward. The appellant had no evidence of such assent — was ignorant of the existence of such evidence, and submitted from necessity — advantage being taken of the circumstances by which he was surrounded; inveigled by a blind confidence into the trial of the cause, he was forced to succumb; and the rights of the estate in his hands have been thus grossly trenched upon. Since that consent given — since that decree made — he has discovered “new proof, relevant and material,” “ come to light after the decree was made, which could not possibly have been used at the time.” This new evidence, now set forth with the petition, as the ground of application “ for the license of the Court ” to file a bill of review, discloses the following distinct facts:
    1st. That Samuel Betts, on 29th August, 1820, acknowledged that the house of Arredondo & Son were then “ owners of three-fourths of the grant only, having previously diposed of one-fourth(p. 9 of re'cord) — which facts settle that the sale to Mitchell was prior to 1820, and that the one-fourth sold to him was an entire fourth of the original grant.
    2d. That Samuel Betts, on 15th March, 1821, together with his associate, did close with Jasper Ward, the sale of 144,822-|- acres of land — (p. 9 of record) — and .on that declared they had but 70,000 acres left; and that the sale was negotiated by Betts, and the contract drawn -up and prepared by himself.
    3d. That Joseph Arredondo, prior to 1825, did expressly affirm to John H. Lewis the right of Peter Mitchell to 70,000 acres, as against each and every member of the firm of Arredondo & Son.
    4-th. That in the winter of 1831-2, Lewis had a meeting with F, M. Arredondo, at St. Augustine, and/with much trouble and by an advance of $200 in money, got him to transfer to Mrs. Lewis 15,000 acres — she agreeing to give him a release of all other claims accruing to her; and that said deed was so accepted in satisfaction. (P. 17 of record).
    5th. That, on Oct. 30th, 1833, Lewis declared his interest iti the grant to be 3 5,000 acres; and referred to his deed on l’ecord as the evidence of his title — (p. 12 of the record), — and on 29th Oct., 1842, again declares this the extent of his claim, alleging that he “ could have recovered more land by suitand that he received such undivided portion of 15,000 acres, abandoning all farther claim to any part or portion of the said grant.
    And the appellant alleges that these new proofs, at the same time that they establish an estoppel in law on Lewis and wife’s setting up these pretensions to a greater interest in the grant, render such pretensions, if set up, worse than idle.
    The counsel for the appellees, feeling the force of this accumulated •evidence, yet insist that although it may prove that Lewis & wife got too much of the land, .it does not show that Putnam, Executor of Mitchell, got too little. And they insist that there is nothing in the record to show that Samuel H. Betts, when he declared, on 29th Aug., 1820, “ we are owners of three-quarters of -the whole tract, having 'previously disposed of one-quarter,” referred to the previous sale of one-fourth to Peter Mitchell. Now concede this for the sake ■of argument, and then the dilemma in which the learned ©eunseS. places his clients, is as fatal as his hypercriticism is refined. Lewis, as has been shewn, repeatedly recognized Peter Mitchell’s claim 'at 70,000 acres; and it is evidenced, in 1822, by the highest muniment of title : this quantity must, then, come out of the land. Now, in March, 1821, Samuel H. Betts declares, “We have about 70,000 acres left.” The deed, then, to Peter Mitchell in January, 1822, took those 70,000 acres — the whole remainder of the grant; and the counsel has thus proved his clients to be entitled to not one acre of land!
    But, I ask, does it not as well appear that Mitchell’s estate got too little as it does that Lewis got too much ? Was not Mitchell entitled to one-fourth of the whole grant ? Was not the sale to him made prior to 1820, and the deed in 1822 ; and is it not now shown that Betts was a party to the contract himself, admitting the sale made ? Does not Betts himself declare that they had sold three-fourths of the grant, and in March, 182.1, had property only in 70,000 acres ? Representing a' third interest in this residue, Lewis and wife have obtained 62,000 acres, more than 6-7ts of the whole — while Mitchell’s estate, representing one-fourth of the original grant of upwards of 280,000 acres, have received less than 27,000 acres of land: The Court seeing, then, such rank injustice-done under the forms of law, will it not look around it for the means of relief?
    But we are told, “ your resource is an original bill to set aside the consent for fraud.” And we are told at the same time, “ there is no 'fraud — Lewis has been guiltless of all fraud.” How then will such original bill bring us relief? It would be superfluous for me to go over the argument of my associate who examined nearly every case since cited by the other side; nor will it be needful for me to bring in review the authorities which fortified our positions in the outset. We believe that these have lost none of their original force under the attack of the learned counsel, while those have gained no new vigor since their true bearing was pointed out by. my associate.
    To the case of Atkinson vs. Manks, 1 Cowan, 693, we were cited by the- appellee’s counsel, to establish that an order or decree in Chancery, entered by consent, is not the subject of an appeal or rehearing. Now that case was in the Court of Errors, the, appeal was from the decree of reference, artd that decree was by consent. That is not this case. But examine the opinion of the Court, p. 709,— 
      (l Whether that decree was erroneous I do not consider open for inquiry. The decree, in every thing that respects the reference, purports to have been made by consent. If the Chancellor was mistaken in supposing Atkinson’s counsel to have consented to it, application should have been made to him to have the mistake as to the consent corrected. That course not having been pursued, this Court cannot try the question,” &e. “ We must take the fact as stated in the decree,” &c. Now what does this prove but that our course here is the correct one — to apply in the Court below to get rid of the consent. We do not appeal from the decree of partition. If we had done so, then our case would have been analogous to 1 Cowen, and we would have been met by the consent decree. But here, if the Court please, our appeal is from a refusal of the Court below to .grant just such an application as the Court of Errors in New-York declare ought to be made.
    In Brockett vs. Brockett, 2 Howard, 238, the Supreme Court simply declare that an application to the Circuit Court to re-hear the same case after decree rendered, is an application to the discretion of the Court; and that no appeal lies, such refusal not being “ a final decree or order.” We apprehend it has no bearing upon the case at bar.
    It is next alleged, that the granting or refusing of the leave to file a bill of review is a, matter of “ judicial discretion,” not open to appeal. Although I concede the general principle “ that where the subject decided by the inferior Court is left by law to their discretion, as in the refusal to grant a new trial, it has been adjudged that a writ of error will not lie,” (for which I cite 2 Har. & Gill, 81); yet I cannot yield that this comes within the rule. True, the granting of such a bill of review is not a matter of right, but of sound discretion in the Court; but the license of the Court is to be given or refused under the law of Courts of Equity, and to affirm that when exercised it is incapable of review in an Appellate Court is to clothe the inferior tribunal with an amplitude of power, beneath which the rights of parties litigant might be overwhelmed.
    The objection has been urged at some length, that the' petition for leave to file a bill of review should have been filed on behalf of Peter Mitchell’s heirs ; that Executors and Administrators have only power over the lands for the payment of debts or to effect division among those entitled, and the acts of 1841, pp. 39-41, have been cited. — ■ To this we say that the Court can decree that the bill of review may be filed — it will be at our own hazard whether all the parties propel are then made. Putnam, as Executor, is certainly a proper party, though perhaps not the only parly. But if he is to be regarded, not as a party in interest, then in entering into the stipulation, he can alone be viewed as counsel entering into an improvident and ruin-cus consent under surprise and ignorance of the facts material to the exercise of a sound discretion, and a fortiori ought hot the heirs be bound by such a consent. Drought vs. Bedford, 1 Molloy, 572. Furnival vs. Bogle, 4 Russ., 142. Gould Vs. Tancred, 3 Atk., 533. Buck vs. Fawcett, 3 P. Wms., 242.
    And if the counsel have indeed succeeded in disproving any fraud on the part of Lewis, then our case rests on the ground of surprise, ignorance''of facts, newly discovered' proofs come to light since the decree made — and this bill of review, and not an original bill, is the proper remedy.
    'The only remaining matter I will examine is upon the suggestion of the Court, the nature of a decree of partition. Is itf nal or interlocutory merely ? The '6th sec. of Act of 1844, under which this bill was filed, contemplates yet another decree, upon the confirmation of the report, a “final decree shall be entered, which shall ac. cordingly vest in the respective parties the title,” &c. But may it not be that the term was here used merely to indicate the closing of the whole matter, and not in the sense in which our Statute of Appeals and the Courts regard it ? The proceeding by partition at common law was by writ “ de partitions faciendo,.” That partition was made by the Sheriff, and 12 lawful men of his bailwick, the text of Littleton is, “ the judgment shall be thus, that partition shall be made,” &c. 1 Coke’s Inst., 168, a. Lord Coke adds, “ and it is to be observed that there be two judgments in a writ of partition. Of the former, Littleton speaketh in this place. And when partition is made by the oath of twelve men and arrangement and allotment thereof, and so returned by the Sheriff, then the latter judgment is ■“ ideo consideratum, est, quod partitio prcedicta firma et stabilis inper-petuum teneaturand this is the principal judgment. And of the other, before this is given, no writ of error can lie.” Now, in the notes on 3d book of the Institutes, 169, a, note 23, several new modes of partition are noticed, amongst the rest, “ a cqpipulsory mode by decree of Chancery exercising its equitable jurisdiction on a bill filed praying for a partition, in which case it is usual for the Court to issue a commission for the purpose to various persons who proceed without a jury.” This mode was unknown in Littleton’s time, — the earliest instance of a bill for partition is thought to be in the time of Elizabeth.
    • It is manifest that this is the character of the proceeding in analogy to which our statute is framed, and the practice in Chancery will be the best guide to determine whether the decree in question is final or not. In Baring vs. Nash, 1 Yes. & Beames, 555, we are told that the remedy at law by writ was extended to bills in equity by stat. 31 Hen. 8, and 38 Hen. 8; and in Wiseby vs. Frisby, 3 Randolph, 370, it is declared to be a’ remedy substituted for the difficult and perplexed remedy by writ of partition.
    Now the difference between a judgment at law in partition (which is that spoken of by Littleton & Coke where they tell of the two judgments and that the second is the principal one), and a decree in equity in partition is very great. It is pointed out in 1 Maddock’s Chan., 245 : “ A partition at law operates by the judgment of a Court of law and delivering up of possession in pursuance of it, which concludes all the parties to it; partition in equity proceeds upon conveyances to be executed by the parties.” In 2 Newland’s Ch., 327, is a precedent of such a decree. Sir William Grant, Master of the Rolls in Agar vs. Fairfax, 17 Yes., 543, says, “ the Court is to ‘ascertain the proportions and rights of the parties,' and when that is done, then the duty of the commissioners begins.” From the decree in that case an appeal was at once taken to Lord Eldon, Chancellor; and it will be noted that after the appeal, the cause was yet heard for further directions and upon the costs. Yet a decree may be final although it require the confirmation of a further order of the Court before it can be acted on. 1 Barbour’s Chan. Prac., 332. Neither does the reservation of liberty to any party to apply to the Court for directions, alter the final nature of the decree. Samé, p. 333. Wé would submit then, under these authorities, that although the bill in equity may be in its effect and object the same as the writ at common law, yet the decree embodies in itself both judgments. All the judicial power of the Court is put forth in the one decree — all that follows after is the execution of it.
   BaltzeíIi, J.,

delivered the following opinion i

The record in this case presents an application for a bill of review through a petition and affidavit for that purpose, alleging the pen-dency of a suit in Chancery between petitioner and others, and defendants and others, for partition and the rendition of a decree in the case, which is stated to have been duly recorded and signed. It asks for liberty to file a bill of review for the purpose of having said decree reviewed, reversed and set aside, having recited facts, in the opinion of the applicant, sufficient to entitle him thereto.

The Court below refused the application, from which an appeal is taken to this Court.

It is conceded that a bill of review lies only after a final decree, so that the first enquiry is whether the decree rendered in this case is of that character.

■ By reference to the record, it is seen that the decree passed by consent for the ascertaining the interest of the respective parties, and also appointing commissioners to make partition of the lands and premises mentioned in the pleadings among the said parties, according to their respective rights and interests therein, as ascertained by this Court and established by this decree, and said commissioners were ordered, after havirig made such partition, to “ report the same in writing to this Court without delay.”

We are clearly of opinion that this is an interlocutory and not a final decree. “ In proceedings in partition, both at law and in equity, there are two judgments and decrees, the one interlocutory and the other final. The first is quod partitio fiat inter partes detene-mentis, upon which a writ or commission goes commanding that partition be made, and upon the return of this writ or commission executed, if the proceedings are approved by the Court; the second judgment is given quod partitio prcedicta firma et stabilis in perpetuwm, teneaiur. This is the principal judgment, and of the other before this is given no writ of error lies.” 1 Coke Litt., 167, b., 168, a. Thomas Coke, 1 vol., 807-8. 8 Missouri Rep., 55. “All the authorities state that a bill for partition is exactly the same as the writ at common law.” 17 Vesey, 549.

It is contended, however, that the test of a decree’s being final, is that an appeal will lie upon it; and we have, been referred to various cases of partition in the English Courts, showing appeals from decisions of the Master of the Rolls to the Lord Chancellor in cases like the one under consideration. If their mode of proceeding were like ours, such an authority would be entitled to great respect. But we find no such similitude or resemblance. By our statute, which in this respect is the same as that prevailing in the Circuit and District Courts of the United States, a decree must be Jinal before an appeal can be had. Not so in the English Courts of Chancery; for there an appeal may be taken from every order on a petition, motion or interlocutory decree, in the progress of the suit; and this seems to be the course in New-York. 3 John. Chy., 66, 68, 123, 163. 15 Vesey, 184. 16 Vesey, 213, 218. 18 Vesey, 453. 9 Vesey, 319. 14 Vesey, 184. 15 Vesey, 585.

If there were doubt, however, as to the character of this decree upon the authorities, there can be none under the law of the Legislature under which this proceeding was instituted. The sixth section of the Act to provide for the partition or division of real estates, approved 14 March, 1844,” enacts that either party may file objections to the report of the commissioners within ten days after they shall be notified of the filing of the same, &c.; and if no objections are filed, or if the Court is satisfied that they are not well founded, then the report shall be confirmed, and a final decree shall be entered up, which shall accordingly vest in the respective parties the title of the several parcels or portions of the premises allotted to them respectively, and shall give to each of them the possession and quiet title to their respective shares as against the other parties to the suit, or those claiming through-or'under them, and a certified copy of said decree recorded in the office of the County Clerk in which the lands lie, shall have the same effect as if mutual releases had been executed between the parties. Acts of 1844, pages 23-4.

The decree in this case being interlocutory, a supplemental bill in the nature of a bill of review, would seem to be the appropriate remedy. 2 John. Chy., 490. 2 Atk. 40, 534. 2 Vesey, Senr., 598. Mit., 71. 17 Vesey, 177. Possibly an original bill might accomplish the object. This, however, will be for the consideration of the Circuit Court. We, then, concur with that Court in refusing to grant the petition and dismissing the case, and order that the same be affirmed without prejudice to an application, if thought proper, for other appropriate proceedings.

The decree is therefore affirmed with, costs.  