¶1 This application may be treated either as a petition to rehear, or as a motion to set aside the order of reference and the order confirming the report, and the decree pursuant thereto.
¶2 It is not strictly a petition to rehear because no error in matter of law is complained of. The error is in a matter of fact and relief can be given upon a petition in the nature of a petition to rehear, or upon a ¿notion to set aside the orders and decree ; provided a fact existed in the proceeding which was not called to the notice of the Court and which, had it been made known, would have prevented the original ■order.
¶3 It is alleged as a fact and admitted that Jonathan W. Albertson, to whom the order of reference was made, and Jonathan W. Albertson, the Attorney of the plaintiff, is the same person. So in fact the order of reference was made to the Attorney of the plaintiff and the error is the same as if the reference had been made to the plaintiff himself.
¶4 . In the absence of any allegation, that the reference was made to Mr. Albertson by'the consent of the defendants there is error and the order, &c., must be set aside as of course.
¶5 The distinction between a writ of error for matter of law and a writ of error for matter of fact in the procedure of *218 Courts of law furnishes an analgy. Pearson v. Nesbitt, 1st Dev. 315, where upon its being made to appear that Jesse A. Pearson, one of the plaintiffs and Jesse A. Pearson one of the defendants was the same person, the Court ordered the judgment to be vacated.
¶6 The order and decree complained of, will be set aside. The plaintiff may take an order of reference to W. H. Bagley, Clerk of this Court.
¶7 Per Curiam. Decree reversed.