bers, and not to the Master. It must, however, be observed, that the recent changes have given more convenient means of obtaining the report, for the purpose of which this order was made.

In the first place the plaintiff may now, as we have seen, move for a decree, directing the necessary inquiries to be made, or accounts taken.

Or the Court may receive evidence by affidavit at the hearing, upon all the points that in former times were made the subject of preliminary inquiries.

Or under the 13 & 14 Vict. c. 35, s. 24, the Court may restrain proceedings against executors and administrators, after the filing of the report mentioned in the 19th section of the Act; or under the 14 & 15 Vict. c. 86, s. 42, rule 9, the executor or administrator may obtain a decree for the administration of the estate, without having all the parties interested before the Court; they may be summoned afterwards before the Judges in chambers, as we shall see hereafter in the chapter on the subject.1

The same observations apply to orders made in foreclosure suits, under the statute 7 Geo. II. c. 20, upon application by the defendant, having the right to redeem, for a reference to inquire into the amount of the principal money and interest due to the mortgagor.2

Orders made upon petitions, addressed to the Court in a summary manner, either on behalf of infants, or under the authority of Acts of Parliament, also come under the denomination of decretal orders; as do also those orders which are made upon petitions, presented under the authority of decrees, which, although final with regard to the persons having the immediate interest in the property in the hands of the Court, reserve a right to parties who, upon the determination of the immediate interest, shall be interested in the property, to apply to the Court touching the same, as they shall be advised.

Orders made under the Trustees Relief Act, which will be included in a subsequent chapter, are frequently final and decisive upon material interests, though they are made upon petition, and not in regularly constituted suits.

When a decree does not adjourn the consideration of the cause, it may be said to be a "final decree," and, when duly signed and 1 18th Order of 16th October, 1852; and see post, Chapter on Proceedings in Chambers.

• See Johnson v. Everett, 9 Paige, 636; Kane v. Whittick, 8 Wendell, 219.

enrolled, may be pleaded in bar to any new bill for the same matter. Of this nature is a decree 2 dismissing the plaintiff's bill,

1 The order for dismissing a bill at the hearing is not usually termed, in the books, 66 a decree," but merely "an order of dismission"; but, to prevent confusion, it is thought best to designate it as "a decree," to distinguish it from “ an order to dismiss" made upon motion.

When a decree finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the Court, so that it will not be necessary to bring the cause again before the Court, for its final decision, it is a final decree. Mills v. Hoag, 7 Paige, 18; Cook v. Bay, 4 How. (Miss.) 485; Britton v. Johnson, C. W. Dud. 24; Tennent v. Patton, 6 Leigh, 196; Talbot v. Todd, 7 J. J. Marsh. 456; Johnson v. Everett, 9 Paige, 636; Crittenden, ex parte, 5 Eng. 333. See per Sutherland J. in Kane v. Whitman, 8 Wendell, 224; Harney v. Branson, 1 Leigh, 108; Longfellow v. Longfellow, 1 Clarke, 344; Hey v. Schooley, 7 Ohio, 48; Brewer v. State of Connecticut, 9 Ohio, 117; Newark Plank Road Co. v. Elmer, 1 Stockt. (N. J.) 754, 787. A decree to sell mortgaged premises is a final decree, and is not opened by an appeal from the decree confirming the sale. Hey v. Schooley, 7 Ohio, 48; Bronson v. R. R. Co., 2 Black (U. S.) 524. A decree may be final although it directs a reference to a Master; if all the consequential directions depending upon the result of the Master's report are contained in the decree, so that no further decree of the Court will be necessary, upon the confirmation of the report, to give the parties the entire and full benefit of the previous decision of the Court. Mills v. Hoag, 7 Paige, 18; Quackenbush v. Leonard, 10 Paige, 131. See Story v. Hawkins, 8 Dana, 14; Girod v. Michoud, 4 Howard, 503; Forgay v. Conrad, 6 Howard, 203, 204. For cases of this character, see Larue v. Larue, 2 Litt. 261, where it was held, that a decree directing land to be conveyed and appointing a commissioner to convey it, is final. See Mackey v. Bell, 2 Munf. 154. So, a decree ascertaining the amount due, directing a sale, and giving costs, is a final decree; Field v. Ross, 1 Monroe, 137; although it directs the taxation of costs. Craig v. Steamer Hartford, 1 McAll. C. C. (Cal.) 91. A decree upon the coming in of the Master's report, on a bill for specific performance, ascertaining the quantity of land to be conveyed, and the balance of money to be paid, that the conveyance should be executed on such balance being tendered, is a final decree. Travis v. Waters, 1 John. Ch. 85. See Taylor v. Read, 4 Paige, 561. A decree foreclosing a mortgage, though there may be subsequent decrees in the same cause, is a final decree. Graham v. Hardin, 4 Dana, 559; Whiting v. Bank of U. S., 13 Peters, 15. So, a decree for the specific sums of money in the bill mentioned, and for a partition of land, which appoints commissioners to make the partition of the land, and directs them to report at the next term of the Court, is final. Talbot v. Todd, 7 J. J. Marsh. 459. But a decree, which though disposing of the main principles of the case, directs an inquiry by a commissioner as to matters which require a report to be made at a subsequent term, and contains no decree for costs, is not such a decree as will sustain a writ of error. Garrard v. Webb, 4 Porter, 73. A decretal order, upon

Ante, p. 683; 117th Order of May, 1845, ante, p. 800. Strictly speaking, the term final decree is only applicable to decrees which have been signed and enrolled, ante, p. 1000.

which, as we have seen before, may be pleaded in bar to a new suit, unless accompanied with a direction that the dismissal is to be without prejudice to the plaintiff's right to file another bill.2 which an execution may be taken out is a final decree. Haskell v. Raoul, 1 M'Cord Ch. 32.

When a decree is made as to one of several defendants, whose interests are not at all connected with each other, with a direction for the payment of costs as to that defendant, such decree is final as to him, although the cause may still be pending in Court as to others. Royal v. Johnson, 1 Rand. 421. See M'Coun v. Delany, 2 Bibb, 441. A decree upon a bill of interpleader, that a bill is properly filed, is a final decree. Atkinson v. Manks, 1 Cowen, 691. Decrees are final, after the end of the term at which they are rendered, unless specially entered otherwise; and they are final after entered up as final on some day before the end of the term, with a view to other proceedings upon them as to final decrees. Jenkins v. Eldredgs, 1 Wood. & Minot, 61.

1 A decree dismissing a bill upon its merits, is conclusive until reversed, and is a good plea in bar to a second bill for relief on the same subject-matter. Bigelow v. Winsor, 1 Gray, 299; Foote v. Gibbs, 1 Gray, 412; Durant v. Essex Company, 8 Allen, 103; Holmes v. Remsen, 7 John. Ch. 286; Hall v. Dodge, 38 N. Hamp 350, 351; Story Eq. Pl, § 793; Mitf. Eq. Pl. 238; 2 Story Eq. Jur. §1523; Sayles v. Tibbitts, 5 Rhode Is. 79; Pugh v. Holt, 27 Miss. (5 Cush.) 461; Neafie v. Neafie, 7 John. Ch. 1; Perine v. Dunn, 4 John. Ch. 140; Estep v. Watkins, 1 Bland, 486; Curts v. Bardstown, 6 J. J. Marsh. 536.

A decree of the Supreme Court of the United States affirming with costs a decree of the Circuit Court for the district of Massachusetts by which a bill in Equity had been dismissed after a hearing, was held, in Durant v. Essex Company, 8 Allen, 103, to be a bar to a subsequent suit in Equity in the State Court of Massachusetts for the same cause, between the same parties, although it appeared by the record of the Supreme Court that such decree was passed by a divided Court.

If a bill in Equity to redeem land from a mortgage, and requiring an answer under oath, has been dismissed, upon motion of the plaintiff, and without the knowledge of the defendant, after the filing of the answer, and after the expiration of the time when, by the rules of the Court, the plaintiff was entitled to file a replication and take testimony, the decree for the defendant is conclusively presumed to be upon the merits, and is a bar to a subsequent bill for the same cause, brought by the same plaintiff, or by one who acquired his title pendente lite. Borrowscale v. Tuttle, 5 Allen, 377; Foote v. Gibbs, 1 Gray, 413.

But where a cause was set down for a hearing on the bill and answer, and the bill was dismissed with costs, because no person appeared for the plaintiff, and the decree was enrolled, the decree was held no bar to another suit for the same matter. Rosse v. Rust, 4 John. Ch. 300; Ante, 808, 809. Otherwise, where there was a replication filed and an order closing the proofs. Osbury v. La Farge, 2 Comst. 113. * Foote v. Gibbs, 1 Gray, 412; Bigelow v. Winsor, 1 Gray, 299; Gove v. Lyford, 44 N. Hamp. 527; Story Eq. Pl. § 793. As to the effect of a dismissal without prejudice, see Nevitt v. Bacon, 32 Miss. (3 George,) 212; Lang v. Waring, 25 Alabama, 625.

Directions of this sort are inserted, where the dismissal is occasioned by any slip or mistake in the pleadings or in the proof: thus, formerly, where a bill was dismissed for want of parties, it was expressed to be without prejudice, and so where a bill was dismissed, in consequence of facts not having been properly put in issue, or of the agreement for the specific performance of which the bill was filed, turning out, upon the evidence, to be different from that actually proved.3

It is to be observed, that although a decree of dismissal of a bill, for the specific performance of an agreement, does not carry with it an implied injunction against a subsequent proceeding at Law, it has been the practice of the Court to insert in the decree of dismissal of such a bill, that it shall be without prejudice to a subsequent proceeding at Law, &c. ; but, whether it.be introduced or not, the plaintiff, after his bill for a specific performance has been dismissed at the hearing, is still considered by the Court of Equity as at liberty to bring his action at Law, upon the contract,5 unless the Court thinks proper specifically to restrain him, by injunction, from so doing; the most usual course of preventing a plaintiff from proceeding at Law, after a dismissal in a case of this nature, is to dismiss the bill without costs, on the plaintiff's undertaking not to bring an action; this, however, is only by way of compromise.7

1 Seton on Decrees, 382. Now, however, a bill is seldom dismissed for want of parties.

2 M'Neill v. Cahill, 2 Bligh, 263.

* Woollam v. Hearn, 7 Ves. 222; Lyndsay v. Lynch, 2 Sch. & Lef. 1; but see Corporation of Rochester v. Lee, 1 Mac. & G. 467, as to the value of such reservations in a decree. But where the decision of the Court that have examined a bill in equity, with the pleadings and evidence, is entered on the docket “dismissed," without other words of qualification, such entry is conclusive of the merits of the case, and a final determination of the controversy between the parties, both in equity and at law; and a motion to amend the record by adding the words" without prejudice," will be denied. Gove v. Lyford, 44 N. Hamp. 525.

Mortlock v. Buller, 10 Ves. 292; M'Namara v. Arthur, 2 Ball & B. 349. A decree dismissing a bill for specific performance of a parol contract for land, is not a bar against the demand of the plaintiff for money he had advanced on the contract. Webb v. Webb, 6 Monroe, 165.

So a decree of dismissal, on a bill to foreclose a mortgage, is no bar to a subsequent suit on the note which it was given to secure. Longworth v. Flagg, 10 Ohio, 300.

See Park v. Johnson, 4 Allen, 261.

Mortlock v. Buller, 10 Ves. 292; M'Namara v. Arthur, 2 Ball & B. 349. 7 Ibid.

It is to be observed, that the Court will, sometimes, not only acknowledge the plaintiff's right to bring an action upon an agreement, although it dismisses his bill, but it will, in express terms, give him leave to bring his action upon the agreement. This, course of proceeding is not confined to cases of contracts; the Court will, in other instances, notwithstanding it decrees a dismission of the bill, reserve to the plaintiff the right to bring an action at Law; and it not unfrequently happens, that the Court, instead of making a decree for an immediate dismissal of the bill, will direct it to be retained for twelve months, with liberty to the plaintiff, in the mean time, to proceed at Law, as he shall be advised; in which case, it forms a part of the decree, that, if the plaintiff shall not proceed at Law, and go to trial within the time aforesaid, the plaintiff's bill is from thenceforth to stand dismissed with costs.2

The cases in which the Court has hitherto retained the bill, with liberty to the plaintiff to proceed at Law, have been chiefly those in which it was necessary to establish his right at Law, in order to found the equitable relief; and the practice has never been allowed to enable the plaintiff to try whether he has any claim at Law; and if he fails there, to come into this Court and try to raise an equity. Now, as we have seen,5 the Court is no longer obliged to adopt this course to investigate the legal right, but may, should it so think fit, itself decide it.

In cases where default is made in bringing the action, the bill will not be out of Court, unless the decree expressly directs that, upon default, the bill is to stand dismissed "without further order." In Cator v. Dewar, it was held, that such further order could not be obtained upon motion, and that the cause must be

1

1 Edwards v. Hockin, Seton on Decrees, 382; Corporation of Rochester v. Lee, 1 Mac. & Gor. 469.

* Seton on Decrees, 356; Wood v. Rowcliffe, 2 Phil. 382; Chappell v. Purday, 2 Phil. 228.

Walton v. Law, 6 Ves. 150. When, on a bill for partition, where partition is a subject of Equity Jurisdiction, the legal title is disputed and doubtful, the course is to send the plaintiff to a Court of Law, to have his title first established. Coxe v. Smith, 4 John. Ch. 271; Phelps v. Green, 3 John. Ch. 302. See Phillips v. Thompson, 1 John. Ch. 132; Pierpont v. Fowle, 2 Wood. & Minot, 23, 36, 37; Mohawk Bridge Case, 6 Paige, 563.

4

• Ibid.

• Seton on Decrees, 357.

Ante, p. 1002. 7 Ibid.