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EDWARD P. FOURNIQUET AND WIFE, AND MARTIN W. EWING AND WIFE, APPELLANTS, v. JOHN PERKINS.

December 1, 1853

EDWARD P. FOURNIQUET AND WIFE, AND MARTIN W. EWING AND WIFE, APPELLANTS,
v.
JOHN PERKINS.



THIS was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana. The controversy between the parties had been at several different times, in various shapes before this court, as will be seen by reference to 6 Howard, 206, 7 Howard, 160, and 14 Howard, 313.

The opinion of the court was delivered by: The case in 6 Howard was this: The Circuit Court had decreed, on the 12th of April, 1847, that a community of acquests and gains had existed between Perkins and wife, during the marriage, and that the present appellants, representing Mrs. Perkins, were entitled to an account. Accordingly, the matter was referred to a master to ascertain the landed property, and to divide it and report an account. This was held by this court to be an interlocutory order only, and not a final decree, and the appeal was dismissed. 6 Howard, 208. The mandate sent from this court, after reciting the decree or order appealed from, and the reference to a master, concluded thus: 'You therefore are hereby commanded that such further proceedings be had in said cause as, according to right and justice and the laws of the United States, ought to be had, the said appeal notwithstanding.'

Under this mandate the master took up the reference, and made a report awarding a large sum of money and a large amount of land to Fourniquet and wife and Ewing and wife. Both parties filed exceptions to the report. These exceptions were before the court, upon argument, in February and March, 1852.

In the mean time, viz. at January term, 1849, the case of Fourniquet et al. v. Perkins was decided by this court as reported in 7 Howard, 160. The Circuit Court appeared to consider this case as deciding the points involved in a different way from that in which it had itself decided them when referring the case to a master to state an account. Upon hearing the exceptions, it therefore reversed the former decree, and dismissed the bill.

The complainants appealed to this court.

It may be proper to mention that whilst this appeal was pending another branch of the case reached this court, which is reported in 14 Howard, 313.

The appeal was argued by Mr. Henderson, for the appellants, and by Mr. Benjamin and Mr. Johnson, for the appellee.

Mr. Henderson contended that it was entirely irregular to dismis the bill, when the only point before the court was the exceptions to the master's report: and that, even if such an order was proper at such a time, still the reasons upon which it was founded, were insufficient. He then proceeded to distinguish the case from that in 7 Howard, and went into a minute examination of it upon the merits. The first proposition is the only one which it is thought necessary to insert in this report, namely:

We concede the point as not debatable, that an interlocutory decree, before enrolment, or before sanctioned on appeal, (where appealable,) continues subject to the chancellor's power, to review, amend, or set aside, at any time before final decree.

But a rightful power must be rightly exercised, or the power becomes usurpation.

Now the exceptions only were at hearing before the court. (See Ch. R. 83.) This 'decretal order' had been enrolled, Rule 85. See 1 Vez. R. 93; 1 Stark. Ev. 245.

The case, therefore, was in no attitude for a rehearing to be entertained, certainly not at that time.

But a rehearing cannot be granted except on petition. 11 Ves. 602; Stor. Eq. Pl., § 426 and n.; 17 Ves. 178; 19 Ch. R. 201; 3 Ed. Ch. 479, 480; 7 Paige, 382; Walk. Ch. R. 356; 2 Haywood's R. 175; 1 Paige's Ch. 39; 2 Hill, 156; and Ch. Rule 88.

And as one petition for a rehearing was overruled in 1847, this is a reason why a rehearing should not have been entertained again, especially for the same cause. 16 Ves. 214; 3 Ed. Ch. 479, 480; Walk. Ch. R. 309.

Especially shall not a rehearing be allowed after the party has proceeded to take an account before the master. 3 J. Ch. R. 365, 366; ...


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