¶1It is not doubted that an appeal would lie in this case, under the Rev. Sts. c. 103, § 31, if no change had been made by the jurisdiction act of 1840, c. 87. The question is, whether a petition for partition, not being, strictly speaking, a real action, nor expressly provided for in that act, is to be considered as within its operation. The legislature, two years later, very clearly expressed an intention not to consider.petitions for partition as real actions, by providing that they might be brought in the court of common pleas, and confirming, as far as they could, all such proceedings in that court since the act of 1840. St. 1842, c. 4.
¶2The court are of opinion that this case is not affected by the jurisdiction act of 1840, and that this appeal was rightly taken, and was pending in the supreme judicial court, when the act of 1859, c. 196, was passed. But it was pending here, not as a question of law, but upon the acceptance of the report of the commissioners, which might involve questions of fact as well as questions of law. There are many cases, requiring the exercise of judicial discretion, in which the court may have to examine facts. This case is like an appeal from a decree of partition in the probate court. It stands upon the docket of this court, and will come up at the next term held by a single judge in this county; for, under the provisions of the act establishing the superior court, this court at a law term has no jurisdiction of matters which have not become questions of law ready for the action of the whole court, and have been entered, or are in *270a condition in which they ought to be entered, upon the law docket. A general appeal is cognizable in the first instance by a single judge. If, at the hearing before one judge, no question of law arises in the case, his judgment will be final. If such question does arise, it may be reserved on report, or by bill of exceptions. Case discharged from law docket.