OCTOBER, a decree in part may be final, and yet another part of the

1810.

Templeman

cause remain in Court.

Again suppose, in the case put, the Court should be of Steptoe. opinion that, as to certain slaves charged by the bill to have been received by one of the defendants as a distributee, they were acquired by purchase from a different quarter, and never had any connection with the estate? Must those slaves be kept in Court for twenty years, and their owner's hands tied, till the other branches of the cause are decided? Reason, right, and practice are otherwise. The bill may be dismissed as to them; and, from that day, they are out of Court, and their owner's hands untied.

Suppose, again, a debt attempted to be charged in Chancery upon the heirs and executors of a man; being different persons; and the Court should be of opinion that the heirs were not liable, (from the nature of the debt, or because they had received no portion of the estate,) but the execu tors were: must the heirs be still kept in Court? Or, if it should appear that the personal estate was fairly exhausted, or demanded for payment of simple contract debts, but that the land was liable to the claim; might they not discharge the executors, and detain the heirs?

So, here, the plaintiffs demand the real and personal estate : the cause is matured for a hearing, and comes on for that purpose fully before the Court: and the Judge is of opinion that the plaintiffs have no right to the personal estate; and, as to that subject, dismisses the bill. The decree is final.

If, in March, 1797, when the decree was pronounced, Elizabeth Steptoe had held only the personal estate, as administratrix to her son; and other persons calling themselves heirs had held the real estate; and the Chancellor had given this opinion, dismissing the cause as to her and the subject in her hands; would she not have been out of Court? Would the pendency of a different and distinct claim against others have operated to keep her in Court, after she had been dismissed? Might she not, in such case, consider herself as discharged, and act accordingly; selling and adminis

1810.

V.

Steptoe.

tering the estate? Would a purchaser under her, after such OCTOBER, dismission, be deemed a lite pendente purchaser, and forced to refund the property? Could the Court proceed to decree Templeman any thing against the party so dismissed, without the notice of new process? Those who hold the affirmative of these propositions, must find a new dictionary of the English language, and shew, by it, that an absolute decision of a right means the expression of a doubt, and to dismiss a party out of Court means to keep him in it.

If, then, the decree would be final, where the heirs and administratrix are different persons, does it make any odds that the two rights concur in the same person? The subjects are in their nature distinct, real and personal, capable of being the subject of distinct suits, and held by different persons. The characters in which they are held are distinct; as heir and administratrix; their functions distinct; their responsibilities distinct. And the maxim is, that, when two distinct rights concur in the same person, they are regarded by the law in the same light as if they were in different persons. The opinion of the Judge treats the subjects and characters as distinct; the expression of opinion as to the right is just as absolute, and the terms of dismission as strong, as if the persons were different; and those expressions and terms of dismission must mean the same thing as if the persons were different. The effect of the decree of dismission is the same as to the rights of the administratrix and of purchasers.

But the decisions of this Court are relied upon as establishing the doctrine that a decree is not final, until all the parts of a cause are disposed of, and all the parties out of Court.

The cases of M Call v. Peachy,(a) Fairfax v. Muse,(b) (a) 1 Call, 55. and the President and Professors of William and Mary College 557. (b) 2 H & M. v. Hodgson,(c) were all cases where the subjects in contro- (c) Ibid. versy and the decrees were of a totally different character from that now in question. In each of those cases, the subject was one; not only incapable of being held by different persons, but incapable of division; much more of distinct Xx

Vol. I.

OCTOBER, suits. The decrees were not, as here, decrees of dismission,

V.

Steptoe.

1810 but of satisfaction of debts in part. We defy the counsel Templeman on the other side to produce a case where, in a suit claiming two subjects in their nature distinct, a decree, absolutely deciding the right as to one of them against the plaintiff, and dismissing the bill as to that, has been held interlocutory quoad hoc.

(a) I Call, 54.

(b) 1 Rev.

Code, p. 67.

The appeal in the case of Grymes v. Pendleton,(a) (as will be seen by reference to the original record,) did not present the question whether that part of the decree which dismissed the bill as to one of its objects was or was not final. The defendants (who were the appellants) could not complain of that part of the decree which made in their favour; as has been frequently settled in this Court. The other part, therefore, which was against them, could alone be drawn in question upon their appeal; and that part was clearly interlocutory. If the plaintiffs had appealed from the decree dismissing the bill as to the land, they might have raised the question whether this branch of the decree was or was not final: and if, on their appeal, it had been adjudged interlocutory, there might have been some colour for the argument on the other side.

Mr. Call, aware of this obvious answer to the argument drawn from that case, has asked, "if the Court considered any part of that decree final, why did they not affirm that part?" Because there was no party before them authorized to ask it. The appellants had no right to ask an affirmance; nor had the appellees, who represented the personal estates of Grymes and Thornton, any interest in, or right to, the real estates. The question then was not raised. By the mere appeal of the defendants, they were not called on to consider any part of the decree in their favour. Why then should the Court have affirmed it

The 49th section of the Chancery law. (b) furnishes no argument to shew that this was not a final decree. The object of that section is only, "for the more entire and better preservation of the records of the Court," to impose a

1810.

Templeman

V.

Steptoe.

certain duty on the Clerk when a cause is finally determined OCTOBER, in all its parts. But it does not declare what is a final DECREE; for no such phrase occurs in the section. Indeed the "final determination," there intended, is always understood as not taking place till after the decision of this Court upon the appeal from the final decree; for not until then does the Clerk of the Court of Chancery record the papers. The Clerk's recording the papers gives no new authority to the decree: the pleadings thus made out are never signed by the Judge. The decree is perfect before; this book being merely for safe keeping. Nor is the enrolment, in England, an act which at all changes the nature of the decree, as to its being final or interlocutory: for, if it did, as the bill of review lies only after the final decree, the time which runs against it would run from the enrolment; whereas it is counted from the time of pronouncing the decree. (a) In- (a) Coop. Eq. deed enrolment "is now much disused."(b) So that the (b) Ibid. 73. final nature of the decree, in England, is decided by its terms, its intrinsic character, and not any formality used in relation to it. And in this country the rule is the same: or if any act, equivalent to the enrolment in England, were requisite to complete the final character of a decree, it is found in this, that the record of each day's proceedings is regularly drawn up by the Clerk and signed by the Judge.

92.

arl.

Cas.

In Metcalf's case(c) there was a judgment quod computet; (c) 11 Co. 39. which clearly was not final; and no writ of error lay till after judgment on the account; as was evident from the very form of the writ:(d) but that case has no resemblance to this. (d) Ibid. 38.b. Ormston v. Hamilton(e) is a short note in the index, in these (e) 8 Bro. words: "Decree, in Scotland, taken for part of a demand, 364. with reservation of the other part not determined. Decreed there that it was lis finita; but reversed." The case itself is not reported in the book: but this little shews clearly that it has nothing to do with this argument. It was determined in Scotland, not that such a decree was final pro tanto; but that it finished the whole controversy; and the lords very rightly determined that it did not. So that the position re

1810.

V.

OCTOBER, mains untouched, that this decree, deciding against the right of the plaintiffs to the personal property, and dismissing the Templeman bill as to that subject, was so far final. If so, the controversy Steptoe. is at an end as to Templeman, the only defendant now before the Court, who, as executor of Elizabeth Steptoe, is interested in maintaining no other part of the decree of 1797: for he is protected by a final decree, unreversed, and unappealed from, and which, in fact, no proceeding has ever been instituted to affect. Mr. Wickham, willing to place this case on the most liberal ground for the plaintiffs, considered their last bil as a bill of review. They disclaim it, and call it a bill of revivor; and rightfully, I incline to think: and, if a bill of revivor, it cannot reach this part of the decree; but only those proceedings which were alive but abated by the deaths of the defendants. The plea and replication do not consider this as a bill of review. The parties join issue upon the point whether the decree of 1797 was final as to the personal estate; and the Chancellor on this issue overrules the plea; thereby deciding that it was not final but interlocutory. This we say is an error; and, if so, the case is with us.

(a) 3 P. Wms. 287.

268.

2. But if the bill against Templeman is to be considered as a bill of review, it is too late, according to the authorities heretofore cited; to which add Cook v. Arnham.(a) But it is said that we ought to have pleaded the limitation; (b) 2 H& M. and the authority of Hite's Heirs v. Wilson and Dunlap(b) is relied upon. But that case goes no farther than to settle the doctrine that every thing, out of the record, that is, every defence which is matter in pais, must be pleaded. But here the objection did appear by the record: the intervening time was shewn on the face of the last bill and its exhibits. Coop. Eq. p. 304. is admitted to say expressly that this matter must be pleaded; and this on the authority of 2 Vezey, 109. The same author had before asserted this doctrine, (p. 216.) on the same authority; expressly laying it down that it will not do by demurrer. Yet in the (e) Sherring note he refers to 1 Bro. Parl. Cas. 95.(c) as contra.

fon v. Smith.