
    Helm vs. Boone and Talbot.
    June 28.
    Error to the Shelby Circuit; Henry Davidge, Judge.
    
      Appeal^ dismissal of. Writ of error.
    
    chancery.
    gase 54.
   Judge Underwood,

delivered the opinion of the court.

On the 2nd of October, 1819, Helm filed his bill against Boone and Talbot, to compel them to surrender their legal title to so much land as was embraced in an entry made on the 3rd day of February, 1783, in the following words “Joseph Helm enters 1500 acres, on part of a military warrant, No. 1320, on the waters of Clear creek, adjoining Allen’s survey on the West, running North with his line, then West, then South to Boon’s pre-emption, then witn Helm’s line North, thence East to the beginning.” And upon which entry a survey was made on the 2?d of Sept. 1798, and a patent obtained, bearing date 13th May, 1799.

The defendants,’in their answer, resist the validity of the complainant’s equity, based upon the said entry, by denying that it meets the requisites of the law, and insist upon the superiority of their title. In September, 1821, the court pronounced a decree sustaining Helm’s entry, and directing a survey thereof to be made, in accordance with the opinion of the court, so as to ascertain the metes and bounds of the land recovered by the complainant of the defendants, preparatory to the rendition of a final decree for a conveyance of their title- The defendants, by consent of the complainant, appealed to the court of Appeals from this decree. In September, 1822, Talbot moved the Circuit court to dismiss the appeal, and to permit him to file an additional or amendatory answer. He made oath that he believed the patent to Squire Boone for 1000 acres, (under which he and his brother defendant claimed,) dated 10th March, 1786, was on file among the papers of the cause at the time it was tried, that he labored under this mistake for a long time thereafter, that the other defendant lived at a considerable distance, and that the whole management of the cause devolved on him. The court sustained the motion made upon the affidavit, entered an order dismissing the appeal, granted a year before to the defendants, set aside the decree, and permitted the defendants to file an additional answer and exhibits. To this proceeding, on the part of the court, the complainant excepted. At the February term 1823, of the Circuit court, the complainant filed an opinion of the court of Appeals, shewing that the appeal prayed by Talbot and Brown in Sept. 1821, was dismissed, by the appellate court, because the transcript of the record had not been filed with their clerk within the time prescribed by law. It does not appear that the Circuit court took any notice of the dismissal of the appeal by the appellate court, further than to enter on record the opinion. The proceedings of the Circuit court seem not to have been influenced by it. The cause was heard in October, 1823, anda decree rendered, dismissing the complainant’s bill with costs, to reverse which, Helm prosecutes this writ of error.

The first question for consideration, grows out of the act of the Circuit court, in attempting to dismiss the appeal one year after it had been granted, and to open the decree. If that decree should he regarded as final, there can be no doubt that the Circuit court erred in opening it at a subsequent term. appeal having been taken from it, if it was final, the appellate court could alone reverse or affirm it; and if it were merely interlocutory, an appeal having been taken by consent, shews the determination of the parties to refer the future decision of the controversy to the appellate court, and from necessity, the action of the circuit court would be suspended by the appeal, until the appellate court had disposed of it. There could not be a greater absurdity in judicial proceed-mgs,, than to have a cause progressing, at the same time, in the inferior and appellate tribunals of the country. Suppose Boone and Talbot had brought up their appeal, and this court had reversed the opinion appealed from, and directed a dismissal of the complainant’s bill with costs; would not such a mandate have been conclusive forever in their favor? It certainly would. If the Circuit court, after attempting to open the decree, had again decided in favor of Helm, would such decision have availed any thing against the opinion of the appellate court, directing the dismissal of his bill? Certainly not. If Boone and Talbot failed to take a transcript of the record, and lodge it in time, with the clerk of this court, but suffered their appeal to be dismissed, is the order dismissing his (their) appeal equivalent toan affirmance? Anappeal has the effeetto terminate the action of the inferior tribunal in the cause, until the appeal is disposed of. When it is disposed of by an affirmance, then the inferior tribunal is authorized to proceed and execute the decree. A dismissal of an appeal by the appellate court has the same effect. It authorizes the inferior court to proceed to execution. Therefore, as it regards all practicable purposes, a dismissal and an affirmance are equivalent. But notwithstanding they are the same as it regards the execution of the decree of the inferior court, there is still this important difference between them, an affirmance upon an appeal would be a bar to the prosecution of a writ of error, whereas, the dismissal of an appeal would not be.

A cause can-notb?inpro-inferior and superior court at tile same tIme‘

An appeal ^oHon o^tb59 fnferior0court ir. the case, until the apposed of.”" 1

Dismissal of joes noTbar the appellant from prosecu-gr“|ra writ 6f

The conclusion resulting from this reasoning, is, that the cirouit court should have proceeded to the execution of thier decree of 1821, upon the filing of the mandate of this court dismissing the appeal.

But again, the interlocutory decree of 1821, as it is called, did effectually settle the rights of the parties, and settle the merits of the conflicting claims. In those respects its aspect and bearing was final. There was, it is true, something still for the court to superintend, preparatory to making a final disposition of the cause, and on that account, it may be said, that all the proceedings past, and to come, should be considered as in fieri) and subject to any modification or change which the court might think proper to make. If this were conceded to its fullest extent, had there been no agreement between the parties to prosecute an appeal from the interlocutory decree, yet under such an agreement, we conceive a very material change has been wrought in the condition of things. It is our opinion that the agreement rendered final, what otherwise might have been considered as in fieri. If the agreement does not have this operation, what effect can it have? It is good for nothing unless it amounts to this: “we abide and rest finally upon the decision of the circuit court, unless it shall be reversed by the court of Appeals.” That the agreement to prosecute the appeal was so understood by the parties there can be no doubt, for at the June term, 1822, “on motion of the complainant, (as the record states) and by consent of the defendants, the said defendants are restrained from the commission of wanton waste, and are restrained from selling and disposing of any timber upon the land in controversy until the determination ofthissuitin the court of Appeals, upon the appeal taken.”

Now how did Boone and Talbot rid themselves from the effects of their agreement relative to the prosecution of the appeal entered of record. One year thereafter they applied to the circuit court by motion, in the absence of, and without notice to Helm, to set it aside. We cannot recognize the notice given to the son of Helm as valid, although he is styled his agent in the bill of exceptions, because there is nothing upon which to justify a belief that his agency extended to the acceptance of such a notice for the father. How far his agency extended, and for what purposes it was constituted, is not definitely shewn. But it is not on this irregularity, and the apparent wrong in setting aside a decree or judgmeht in a man’s favor, without notice, a year after it was rendered, that we place our main objection to the legality of the proceeding. It is upon the want of power an the part of the circuit court to open the decree in the manner attempted, that we found our opposition. The decree in respect to the rights of the litigants was rendered final by their agreement, so far as the circuit court was concerned, and being so, that court had no more power to open it, for the purpose of letting in new matter, or to bring in a paper which was supposed to have been filed upon the affidavit of the defendants or either of them, than it would have had to set aside a judgment at law, and to grant a new trial a year after, upon a suggestion made on oath, that the bill of exceptions did not set out a paper which the defendants supposed had been used on the trial, but which in fact never had been so used.

The case of Jameson, & Co. vs. Mosely, IV. Monroe, 415, shews that when an appeal is- taken by consent from an interlocutory decree, and that decree affirmed by this court, it is no longer within the power of the inferior tribunal, and that nothing remains to be done but to carry it into effect. So in this case, when this court dismissed the appeal and the mandate returned to the circuit court, it should have effectuated its former decree, without regard to the new matter which had been brought before the court by the supplemental answer. There seems to us also, to be something improper, even if ihe circuit court had the power to open its decree, in its exercise after the lapse of a year, during which Helm had a right to consider the cause transferred to the appellate court. If the appeal had not been taken by consent at the time it was, then ihe survey therein required, would in all probability, and according to regular proceeding, have been made previous to the next ensuing term, at which a final decree W'ould have been rendened. Had this been done, there is no pretext for tolerating the idea, that the circuit court could thereafter, upon the affidavit of Talbot, opened the decree. The agreement in relation to the prosecution of the appeal, suspended the execu-*'011 surveJ) an(^ the steps contemplated by the interlocutory decree; and this being the result of the yielded by Boone and Talbot they should not thereafter be permitted to prejudice Helm on an es-parte affidavit, when it is manifest, if no agreement bad been made, the decree must have been rendered final by the regular course of proceeding in the circuit court, before the term at which the court undertook to open the decree.

Petition fora re-heaving.

Crittenden, for plaintiff; Denny and Talbot, for defendants.

From the view of the case we have taken, we cannot resist the conviction that the decree of Sept. 1821, under all the circumstances, is final; and that the parties are bound to abide by it. This supersedes the necessity of investigating the merits of the complainant’s entry.

Wherefore, the decree of the circuit court, rendered at their October term, 1823, is reversed and set aside, and the cause remanded, with directions to proceed upon the decree of Sept. 1821. Whether the defendants will have any remedy by writ of error or appeal, after the circuit court shall have finally disposed of the cause, need not now be enquired into.

The appellant must recover his costs.

Mr. I. Talbot, as counsel for the defendants, filed the following petition for a re-hearing, to-wit:

The magnitude of the interests involved in, the opinion, pronounced by your honors, in this case, with the thorough convictions of his best judgment on some of the principles discussed and settled with their application to the facts presented in the present record, have induced the undersigned, for himself, and as counsel for his co-defendant, to trouble your honors with this petition; in the confident reliance that it will receive the calm, cool and careful review and reexamination which its novelty and importance merits.

The primary and important question which presents itself for adjudication in the case, is, that which results from the power exercised by the circuit court, in entertaining the motion of the defendants to dismiss the appeal, which had been prayed, and with the assent of the complainant, granted them to the appellate court, from the decree which had been pronounced therein, affirming and establishing the superiority of the claim of the complainant to the whole or a portion-of the land in controversy, deciding on the mode in which the complainant’s entry should be surveyed, and directing the surveyor to identify the land which would be embraced by the entry of the complainant, when laid offin conformity with their opinion, and to report by metes and bounds the interference which should be found to exist between the claims of the respective parties, when laid off in conformity with this opinion.

rehearu/0* & *

This is a simple question of power and jurisdiction in the circuit court, entirely unmingled with any considerations connected with another question which might be raised; whether in the exercise of a lawful and unquestioned power, (that being conceded) the court in the exercise of a just and sound discretion, with which they were endowed, were guilty of any error so enormous, as to authorize an inference that a discretion truly, and wisely vested, had been abused; such abuse alone being thejust or proper subject for correction or control by the appellate tribunal? And this question resolves itself into this further and ultimate inquiry, on which the decision must finally rest: Is the opinion and decision of the circuit court which has been alluded to, a jfinal decree in the cause, or is it not?

The affirmative of this proposition, it is true, was asserted by the counsel for the plaintiff in error,on the argument of the case. A proposition so novel and extraordinary-, unsopported by argument, reason or authorit}"', in direct contravention of the strong clear and precise terms employed in characterising this species of decree, excited in the mind of the opposing counsel feelings of astonishment alone, not the less intense, because of the elevated standing and acknowledged legal talents of the gentleman by whom it was advanced; feelings which have been immeasurably increased by the opinion pronounced herein, which seems intended, if its scope is entirely comprehended by your petitioner, for the purposes, at least of the present controversy, to give full sanction, and to stamp with the might of the highest judicial authority of the state, a proposition, which with all due respect, ■ seems at war with elimentary principles, with the ■constant invariable usage'of courts of equity, and with the plain, clear and unequivocal terms in which it is expressed.

Petition for re-hearing.

The division of decrees in chancery, is into two species and no more. Decrees which are interlocutory, and final decrees. All decrees and orders, which intervene between the hearing and final disposition of the cause, from the common understanding and definition of the term, are interlocutory. Such decrees almost invariably settle some principle, or establish some right, or settle some controverted fact. They always lead to some otheror further scrutiny or investigation of some fact, the settlement or adjustment of some account,or the assessment of some indemnity for some injury sustained.- In their nature or their terms, such decrees are not final. Nor can they be so denominated without producing a confusion of ideas, or abuse of language and a perversion of terms.

A final decree, on the contrary,is that Iastandfinal actor order of the court, which forever puts an end to the jurisdiction,to the exercise of any farther judgment or discretion over the terms, or form or essence of the decree; and which leaves to the court by whom it is pronounced, no further power or authority but to superintend and see to its faithful execution by the ministerial officers of the law. From this it will be seen as a clear and inevitable consequence, while the cause stands upon an interlocutory; and before a final decree has been entered and enrolled; the decree, the whole record, is as it has been often styled, in the bosom of the court; the decree, as well as other proceedings in the cause subject to be changed,' or modified, altered or entirely abolished, and a new one given thereon, in the exercise of a sound discretion, the chancellor, under the influenceof those principles of equity, which should ever be his guide, shall find it fit ,and proper^ so to do. And it is in these intermediate stages, before the! door is closed by the last and final decree which dismisses the par* ties from this forum that motions and petitions to open such interlocutory decrees and orders have, from time immemorial, and according to universal usage, been freely permitted and allowed. But when the final decree which is that, which disposes ofall the matters in controversy, finally, and even the costs of suit, has been pronounced, and the term of the court expired, and not till then, the power of that tribunal is gone, with the right to exercise revising power, that is a re-examinalion of its own decree thus rendered final, by a bill of review. To apply these well settled principles to the case in question, how shall the decree which, by consent, had been appealed from, be characterized? It had adjudicated upon the claims placed in competition by the respective parties. It had pronounced the entry of the complainant a valid one. It had prescribed the mode in which it should be surveyed in conformity with its opinion, and for the avowed purpose of enabling that court to enter a final decree between the parties, the surveyor, a ministerial officer, had been directed to identify the land recovered, and ascertain its bounds. His report to be subject to the examination and sanction of the court, to the scrutiny and objection of both the parties. And not until the completion of the whole, was it competent for the circuit court to pronounce that final decree between the parties, which could compel the defendants to convey the title, or yield the possession of the premises in contest, which was held by them.

Petition for a re-hearing.

In what sense, or to what purpose then, was this decree a final one? There is no one actor thing directed by thisdecreetobedone byeitherofthe parties,the thing to be recovered, the land in contest, is not ascertained or identified by the decree.

No conveyance or release of title thereto on the part of the defendants was ordered; or the possession of the premises directed to be yielded; nor in that stage of the business could have been ordered, without involving absurd and impracticable consequences to the parties and the court. The decree had done no more than fix the principles which, in that court’s opinion, ought to govern them in adjusting, by; their final decree, the matter in controversy between the parties. And is such an one as has, as far as your petitioner believes, been uniformly, by Ilusas well as all other courts of equity, been characterized an interlocutory decree; and of consequence is such an one,as conformably to the principles and usages of the courts of chancery from time immemorial, has been considered as liable to all such changes or modifications as the circumstances, which might be developed in the progress of the cause, and the principles of justice might call for.

Petition for re-hearing.

But an appeal', with the assent of the complainant, had been prayed for, and granted by the court from this decree to the appellate court; and this consent yielded to this appeal on the part of the complainant seems, in the opinion of the court, to have conferred some new character or additional final character on this decree.

The force of the argument endeavored to be derived from this circumstance, is not perceived.

This consent, it is true, was indispensable at this stage of the cause, to the prayer or grant of an appeal. That it was so, is proof incontrovertible, that the decree was not a final one, as asserted in the opinion of the court. This consent yielded by the complainant, was on his part, no yielding or sacrifice of any right; on the contrary, it was for the immediate promotion of his best interest, a speedy attainment of the final object of his suit, by abreviating the time which would have been otherwise required, for the final termination of his suit; and thereby obtaining at an earlier period the enjoyment of the fruits of his successful suit, by the obtaining that possession of the premises in contest, which was held adversely by the defendants. On their parts, the defendants, by a more speedy termination of the case in the appellate court, had naught to gain, the enjoyment of the land to loose, and no benefit in prospect, but an earlier release from the harrassment and expense of a troublesome and expensive suit.

Iiow then, and upon what principle of equity or of just and fair argument, shall a mere consent on the part of the complainant, to an immediate appeal from this interlocutory decree, confer upon this act of mere consent, the character of a solemn compact between the parties, which can confer any additional rights on the complainant, or compel the defendants, whether they will or no, under all circumstances, to prosecute that appeal from an interlocutory decree, on pain of being forever barred from all right at any future period, by any means, either in the inferior or appellate court, to correct the injustice of that decree? The consent was asked, or given, certainly with no such views of future consequences; but with the single purpose, of having an earlier decision of the matters in controversy by the appellate court, than would probably have been obtained by awaiting for a final decree, before the prosecution of the appeal; By the consent of the complainant to the prosecution of the appeal, no right was yielded, nothing was put to hazzard. No legal advantage on the part of the complainant was given Up by him. And on what principle then, is the complainant to derive an advantage never contemplated by him when this consent was yielded? And certainly never droanhed of by the defendants when this consent was asked. The appeal thus prayed for, and granted to the defendants,' as their peculiar legal privilege, and for their exclusive benefit, like all other benefits conferred by law; they might at any time, renounce according to a maxim of law which has for its basis the dictates of corn-toon sense, which is not the just boast of all our legal maxims;

^.hearine.1

Can the circumstance that this privilege of appeal conferred by the law, and constitution of our country, was exercised,at aperiod alitlle eariierthanotherwise it could have been by the assent of the complainant; an assent9 from which himself derived the principal or only benefit, deprive the defendants of their legal right, full and planary, reserved to them by a fundamental maxim of the law? It is conceived not.

The right of the defendants to dismiss their appeal; And to enter the order of dismission in the circuit court, the tribunal by which it was granted, before the filing of the record in the appellate court, an act ivhich alone could confer power or jurisdiction to act therein; otherwise than to dismiss the appeal on the motion of the appellee on account of the failure of the appellant to file the transcript of the record hi the time prescribed by law, seems not to be questioned by the opinion of the court. If this right remains unquestioned, the right and power of the circuit court to entertain the motion of the defendant to set aside the interlocutory decree, or open the cause, by permitting the defendants to file an amended answer for the simple and exclusive purpose of introducing their patent into the cause, will not, and cannot be questioned. And if the decree was only interlocutory; a point which we flatter ourselves cannot be longer questioned, was it not fully competent to the circuit court in the exercise of a sound discretion, to permit the defendants to correct the effect of a mere inadvertence in an omission to file their muniment of title, of the existence and date of which, the complainant, from his own shewing, was perfectly cognizant before the commencement of his suit? In the exercise of this discretion, this honorable court has uniformly disclaimed all right, on their part, to interfere, contenting themselves with the reservation of the right to control or correct the abuse of that discretion, which is properly vested in the tribunal of original jurisdiction only. Indeed it was not urged in argument, nor is it intimated in the opinion, that there was any abuse of the discretion vested in the inferior jurisdiction, on this occasion; or that the matter contained in the affidavit did not disclose such a state of circumstances as would form a fair and just excuse for the inadvertence, in supposing the patent under which they held the land had been actually filed, and was on the file of papers at the hearing of the cause. Surely then, if the circuit courfis not arraigned for the abuse of a discretion, acknowledged to belong to that tribunal; and if all interference with the fair exercise of that discretion is disclaimed by the appellate court; it cannot be fairly or justly urged, that the inferior court erred in setting aside their former interlocutory decree; affording to the complainant time, if he desired it, either by new allegation, to remove, or obviate the ground of defence which was set up in the amended answer. Ample time for this purpose having been allowed, and no additional matter having been offered, either by way of allegation, or of evidence, the cause progressing on to final hearing, the defence arising from the fair and best construction of the compact between Kentucky and Yir-ginia, being deemed fatal to the complainant’s claim, his bill was dismissed with costs. On this dismission, the complainant slept in quiet,acquiescing in the tice of the decree, and in the propriety and fairness of the proceedings from which it resulted, for more than three yearsj until the time, allowed by the permanent existing laws for the prosecution of a writ of error had elapsed; and then availing himself of an act of the Legislature deemed, by your petitioners tobe a flagrant violation of the constitution, and of their legally vested rights, endeavors by the arguments of his counsel, to throw all the odium of unjust procrastination on his adversaries; who, within the period prescribed by law for the prosecution of their appeal, had the transcript of the record from the circuit court prepared to file, a purpose which was arrested only by the discovery, for the first time, that their patent was not on the file of papers in the suit; another patent in the same name of Squire Boone, for the same quantity of 1000 acres, on pre-emption too, by its endorsement, having deceived the counsel, who had had no occasion to open and examine it on the hearing of the cause.

Petition for re-hearing.

^ee¡!tioanfor a

But should this court still remain unshaken in the opinion, that it was utterly incompetent for the circuit court to touch the decree, whether interlocutory or final, which they hád entered in the case; and that on the dismission of the appeal taken from this decree, nothing remained to that tribunal but to proceed to cause a survey to be executed, and on its return to enter their final decree for a release or conveyance of the defendants title; and that we must consequently submit to a reversal of the decree of the circuit court, it is submitted with all due deference, whether the intimations in the opinion, of the future consequences which may result from this appeal, and its dismission on the rights oí the parties in litigation, are notprema-ture, as well as incorrect.

The right of the defendants, when a final decree, in conformity with the mandates of this court, shall have been entered against them by the circuit court, again to contest the legal consequences of the dismission of their former appeal by writ of error here, is expressly reserved to them in the opinion.

r^hearkig01"&

Is it not then premature if not entirely extrajudicial on occas'on for your honors to discuss the quegtion which may arise, when the matter shall be pro-presented by writ of error taken from such decree, when it shall have been pronounced, should the dismission of the appeal heretofore taken from the interlocutory decree, be relied on by the complainant, as a bar to its prosecution! And would it not better comport with the- rights of the parties, to forbear the discussion, at least the decision of a question which can only be judiciously determined on the suing out such writ of error, when, your petitioner flatters himself he shall be prepared successfully to meet it?

But if your petitioner may be permitted, with all due deference to the court, to question the correctness of the intimation thrown out by your honors in your opinion, that the dismission of an appeal, or of this appeal under the peculiar circumstances is equivalent to an affirmance of the judgment of the circuit pourt, he would urge, were this the suitable occasion, that tire writ of error for the reversal of the judgments of the inferior tribunal, by the appellate court, is a writ of right; which, by the express terms of the law organizing the appellate court, is given the party, deeming himself aggrieved,,in all cases of final judgments, orders ordecrees, without exception, issued out within the period limited for the prosecution; a privilege of which the complainant, in the present case, has been permitted to avail himself, even after the usual period fixed by the permanent existing law, and that for the reversal of a decree of the circuit court, dismissing his hill with costs, a decree too, which, if the opinion of your honors, that the former interlocutory decree pronounced by the same tribunal was a Jirial one, must of consequence, as it would seem to your petitioners be an entire nullity; and if void, for want of power or jurisdiction, to touch the cause in any manner or, for any purpose,.will a writ of error lie for the correction of any supposed error in a decree, which decree is in itself an entire nullity? It would seem not.

But has it ever, on any occasion, been questioned or doubted by any one, that it was competent for any one wbo bad taken an appeal from any decree, either interlocutory or final, (which) had been dismissed for want of prosecution,irregularity or any othercause, to prosecute a writ (of error) from the samedecree? And has it not been the uniform and universal practice, from the organization of the court, to entertain such writs of error? Are, there not such,at this moment, pending on your docket, and has any counsel ever thought of paliing in question the propriety or legality of such proceedings? And if your petitioner is correct in these suppositions, what is therein the peculiar character or circumstances of the present case, by which the defendants should be disfranchised, or deprived of this ordinary exercise of a common right? Their appeal, it is true, was taken from a decree which, being but interlocutory, required the consent of the complainant for its prosecution. When that consent was yielded, bad such consent any other consequence than to place the decree on the footing of a final one, for the purpose of conferring jurisdiction on the appellate court? And if on final decree, the dismission of an appeal is no bar to the prosecution of a writ of error for the reversal of such decree, why may not a writ of error be prosecuted after the dismission of an appeal taken from a deere interlocutory only, when that decree shall be rendered final in obedience to the mandate of the court in the present case? Is there any magic in the consent given by the complainant in the present case, which should exclude the defendants from the common privilege granted by the law to every citizen,in all cases whatever withoutexception? It is confidently hoped that none such will, upon a careful review of this case, be found to exist.

ree_hearin°r * '

Upon the whole case, novel andanomalous as itmay appear in some of its peculiar circumstances, your petitioners indulge the hope, that it has some claims on your honors for a re-examination of the opinion; and if not to an entire change in the general result, at least to some modification, or explanation of the portions of it to which your attention has been respectfully solicited.

In illustration and support of the principle contended for on behalf of your petitioners, that the well settled principles and usages of the court of chancery in England, is to authorize petitions or motion's for rehearings at any stage of the cause, before the proceedings are enrolled, which is done in parchment, and signed by the Lord Chancellor; which, is never done till the cause is finally decided and disposed of, and not only the merits of the case have been settled and decided, but all the minute details of the decree, and even the costs of the suit disposed of.

But the liberality of the chancellor has even extended this mode of relief still farther.

For when the decree has been obtained with unusual haste or precipitancy, (he will) set aside even a final decree, even after it has been enrolled, andgrant a rehearing; in analogy to the powers exercised by even the courtsof common!aw,in settingasidejudgments at law, particularly in ejectment cases, where they have been taken by default, and there is surprize on the part of the defendant, although the judgments are strictly regular. See II. Atk. 152. Hinde’s Chy. Prac. 443-4-5. I. Vez. 326.

Untibthe’decretal orderhas been drawn up, signed, and enrolled, it has the force only of an interlocutory order, and is not final; but may be altered on .a rehearing, or it should seem if the decree has not been acted under, it might be altered, on motion, or petition. Hinde’s Pr. Chy. 442.

On consideration of the petition, the court granted a rehearing, and afterwards delivered the following opinion, io-wil:

June 28.

Judge Undeewood,

delivered the opinion of the court.

Upon reconsidering this cause, we deem it proper so far to modify the opinion heretofore delivered, as to decide explicitly, a point, which in the conclusion was left open, and likewise to give some further explanation of parts of the opinion which might be regarded as ambiguous. By praying the appeal, and the same having been granted by the circuit-court, with the assent of the complainant, we think that the power of the circuit court over the cause, thereupon ceased, and no further step could be taken until the appeal was disposed of by the court of appeals. This could only be done in one of three ways, by an affirmance, or a reversal, or a dismissal. If it had been done by either of the two first mentioned modes, then the merits of the controversy would, in all probability, have been finally settled by the decision of the court of appeals; but as the appeal was merely dismissed for want of prosecution, nothing in relation to the merits of the cause was settled by the appellate court, and the case then stood in the circuit court upon the interlocuorty decree therein rendered. The agreement of the parties to render the interlocutory decree final, was with a view to have the merits of the controversy settled by this court. They had failed to obtain the contemplated adjudication, owing to the dismissal for want of prosecution. The case differs from that of Jameson, &c. vs. Mosely, in as much as in that this court decided the merits of the controversy, and here it has not been done.

Where an ap-S?e,al fr0I“ an decreehasf by consent, í*ee“ granted, ^ dismissed for want of prosecution, °tí to the inferior court,stands a^i ha/ever' been granted*

Upon the dismissal of the appeal, therefore, in this ease, we think the circuit court was placed in relation to the cause in the condition it would have occupied had no appeal been taken, with this exception, that its powers were suspended so long as the appeal remained in force, and.consequently, the circurt court had no power to act, until the mandate of this court, dismissing the appeal, was entered of record. Itfol-lows, that the order setting aside the interlocutory decree and receiving the supplemental answer was, even if good cause for doing it had been made out, unauthorized by law. Whether the defendants, after the mandate of this court dismissing the appeal, was entered, could make out a case sufficiently strong to warrant the circuit court in setting aside the interlocutory decree, is not before us. Regarding, as we do, all the proceedings of the circuit court taken after rendering the interlocutory decree, and before the mandate of this court, dismissing the appeal, was entered of record, to be void, we think it proper to reverse the decree of the circuit court, and remand the cause to be placed upon its return, in the situation it would have stood in had no appeal been prayed. It may be said, that as the circuit court thereafter dismissed the bill, we ought now to adjudicate upon the' merits of the controversy, looking to the preparation of the cause for trial, as it stood when the interlocutory decree was. rendered. We will not do this, because the final decree has been rendered contrary to the interlocutory decree, which the court below had no authority to set aside when it attempted to do so, and because the final decree may have been influenced by the erroneous proceedings of the court, and because we will not say that Boone and Talbot may not yet shew sufficient cause for opening the interlocutory decree.

It results from the foregoing view of the case, as this court has never decided the rights of the parties, and as the parties will be left by the reversal,now? to take place, in the situation in which the interlocutory decree placed them, that Boone and Talbot as well as Helm, upon the final disposition of the cause* may prosecute an appeal or writ of error to this court, and thereby bring up the merits of the controversy.

The difficulties which have arisen in this cause, have grown out of an agreement to make an interlocutory decree final, with a view to obtain a decision of this court, and thereafter failing to execute the agreement according to its spirit.

With this modification of the formef opinion, the same must remain.  