rehearing of exhibits which were not in evidence at the original hearing, and an order to prove vivá voce such exhibits at the hearing of the appeal always might have been obtained without notice.2

From these rules it would appear that no new witness could now be examined before the Examiner upon a rehearing, but the Court of Appeal may, if it think fit, exercise the power conferred upon the Court, by the 39th section of 15 & 16 Vict. c. 86, of examining a witness or party orally at the hearing.3

It is also to be observed, that, in no case, has the Court permitted new evidence to be given, at a rehearing, as to any matter which was not in issue upon the original hearing.1

It may be noticed in this place, that, in case of a rehearing or appeal, the whole case is open to the respondent; 5 thus, if the appeal is against the whole decree, it is competent to the Court to modify the decree, by making it more favorable to the respondent; therefore, where a plaintiff who had succeeded in obtaining a decision against the defendant, with costs, had the cause reheard, in order to obtain an alteration in the decree more favorable to himself; whereupon Lord Cottenham, upon the rehearing, being testimony; in these cases, and perhaps others of a like nature, the Court will permit the testimony to be taken, if it is satisfied by affidavit of its materiality. Scales v. Nichols, 2 Yerger, 140. So it appears a party may be let in to read fresh evidence, not read at the former hearing, where it has been duly taken in chief, and omitted by negligence or other cause to be read, or if the evidence be new matter not before ready, or relates only to papers since found, and which may be proved vivâ voce, at the hearing, or to testimony going to show the incompetency of a witness in a former deposition. Dale v. Roosevelt, 6 John. Ch. 255. See Story v. Johnson, 1 Irish Eq. 586; Wendell v. Lewis, 6 Paige, 233; Hill c. Chapman, 1 Sumner's Vesey, 405, note (a), and cases cited.

1 For. Rom. 183; Walker v. Symonds, 4th August, 1810, cited 1 Mer. 37, n. (a). See Studwell v. Palmer, 5 Paige, 166; Lovell v. Hicks, 1 Irish Eq. 480; Jenkins v. Eldredge, 3 Story C. C. 299. Exhibits read in evidence in the Court below, without objection, will in the appellate Court be considered as part of the record. Helm v. Hardin, 2 B. Monroe, 231, 233.

2

Herring v. Clobery, Cr. & Ch. 251; and see Hood v. Pimm, 4 Sim. 101: Williamson v. Hutton, 9 Price, 187; Williams v. Goodchild, 2 Russ. 92; Wyld r. Ward, 2 Y. & J. 381; Higgins, 5 Russ. 287.

3 Martin v. Pycroft, 2 De G., Mac. & Gor. 785.

Holt v. Burleigh, Prec. in Ch. 293.

See Terhune v. Colton, 1 Beasley (N. J.) 312, 318; Consequa v. Fanning, 3 John. Ch. 587.

Sullivan v. Jacob, 1 Moll. 472; and see p. 1564, note 3.

of opinion that the plaintiff was not entitled to any relief at all, dismissed the bill with costs, saying, "The plaintiff having thought fit to present a petition of rehearing against the whole decree, the defendants are entitled to raise any question (and amongst others the question of costs), and I am bound to deal with the cause as if it now came on before me upon the original hearing. The result is, the defendants must have their costs of the suit up to and inclusive of the hearing, but I cannot give them their costs of setting the decree right."

So where the appeal is against part of the decree only, the respondent may, if he considers it necessary, go into the whole case and every part of it, whilst, in relation to the appellant, it is only as to the parts complained of in the petition.2

The.reader is to be reminded here, that, at the hearing of an appeal, or rehearing, the Court will give the plaintiff leave to amend, by adding parties in the same manner as upon an original hearing, and will order the rehearing to stand over for the purpose; and that it has gone to the extent of allowing the plaintiff to add the Attorney-General as a party, either by converting the bill into an information and bill, or into an information only.3

The costs of a rehearing, as well as of an original hearing, are in the discretion of the Court; but, generally, if an appeal is dismissed, it will be with costs.

From a certificate furnished to Lord Langdale, M. R., in the case of Agabez v. Hartwell, it appears, that " It is a general rule, that costs of appeals, rehearings, and exceptions, are not carried by the words costs of suit as between solicitor and client,' but require to be specially mentioned in the order for taxation."

1 Oldham v. Stonehouse, 3 M. & C. 317.

Rawlins v. Powell, 1 P. Wms. 299. On a rehearing, the cause is open to the party who petitions for it, only as to those parts of the decree complained of in the petition; but to the other party, it is open as to the whole matter. Consequa v. Fanning, 3 John. Ch. 394; Dale v. Roosevelt, 6 John. Ch. 255; Ferguson v. Kimball, 3 Barb. Ch. 616. See Glover v. Hodges, 1 Saxton (N. J.) 113, where it was held in New Jersey, that on a petition and order for a rehearing generally, the whole case is open, and the party supposing himself aggrieved has a right to insist upon a reconsideration of any part of it. See also to the same effect, Sparhawk v. Buel, 9 Vermont, 41. See Hill v. Chapman, 1 Sumner's Vesey, 405, note (a).

* President of St. Mary Magdalen v. Sibthorp, 1 Russ. 154. See 2 Hoff. Ch.

Pr. 38.

5 Beav. 172.

If the decree or order be varied, the subsequent proceedings go on in the Court below, as if the order made in the Court of Appeal had been made in the Court below.1

SECTION III.

Of Appeals to the House of Lords.

ANY person who feels himself aggrieved by a decree or order of the Court of Chancery is entitled, as a matter of right, to appeal to the House of Lords.2

The mode of obtaining the interposition of this tribunal, in the case of an appeal from this Court, is by petition of appeal, which may be preferred from an interlocutory as well as from a final order;3 in which respect appeals from Courts of Equity, by peti

1 Sowden v. Marriott, 2 Phil. 623; Salkeld v. Johnston, 1 Mac. & Gor. 256; Malcolm v. Scott, 3 Mac. & Gor. 52. In Massachusetts, on the reversal of any final decree, the Court may remand the cause, with such directions as are necessary and proper, to a single Justice, further to proceed therein, or may refer it to a Master, or take such other order respecting future proceedings therein as Equity requires, and as shall be most conducive to the just and speedy determination of the cause. Genl. Sts. c. 113, s. 8.

2

"In Massachusetts, any party aggrieved by a final decree, made by a single Justice, may, within thirty days after the entry thereof, claim an appeal, to be entered upon the Clerk's docket; and so, from all interlocutory decrees made by a single Justice, any party aggrieved may appeal, in like manner to the full Court. Genl. Sts. c. 113, ss. 8, 10. And a party, having, by accident or mistake, omitted to claim an appeal from any final decree, within the time allowed for that purpose, may, at any time within one year after the entry of the decree, from which he desires to appeal, apply to the full Court, by petition for leave to appeal; which may be granted upon such terms as appear to the Court just and equitable. Genl. Sts. c. 113, s. 13. It is further provided, that the Justice, by whom a case is heard for a final decree, may reserve and report the evidence and all questions of law therein, for the consideration of the full Court; and thereupon like proceedings shall be had as on appeals from final decrees. Genl. Sts. c. 113, s. 15.

See Townsend v. Smith, 1 Beasley (N. J.) 353. The practice is otherwise in the Courts of the United States, where the right to appeal is by law limited to final decrees. In this respect the practice of the United States Chancery Courts differs from the English practice. Per Taney C. J. in Forgay v. Conrad, 6 Howard (U. S.) 205. In the Chancery Courts of the United States an appeal will not lie from an interlocutory order, ib.; Perkins v. Fourniquet, 6 Howard

tion, differ from appeals, by writ of error, from the judgments of the Courts of Law, which will only lie where the judgment is final. The reason for this distinction is stated to be, that Courts of Equity often decide the merits of a case in intermediate orders, and the permitting of an appeal, in the early stage of the proceedings, frequently saves the expense of further prosecuting the suit; but in actions at Law, no such orders intervene, consequently a writ of error cannot be brought before final judgment.1

It is, however, to be observed, that although appeals will lie to the House of Lords, it is only in cases where such orders have been pronounced by the Court of Appeal, or have been enrolled.

It may be laid down also, as a general rule, that an appeal to the House of Lords will only lie from a decree or order made in a cause or suit irregularly instituted; and that an appeal will not lie from an order of the Lord Chancellor, or Lords Justices, in matters of idiocy or lunacy, there being a distinction between the jurisdiction of the Court of Chancery and the power of the Lord Chancellor; in those cases, an appeal lies to the Privy Council.2

By the 10th section of the Act, making the Lords Justices,3 "All decisions, decrees or orders of the Court of Appeal, includ(U. S.) 206; S. C. 16 Howard (U. S.) 85; Pulliam v. Christian, 6 Howard (U. S.) 209. See Rodman v. Forline, 2 Met. (Ken.) 325; Hall v. Lamb, 28 Vermont, 85; Heath v. Vrelan, 11 Maryland, 388. "In limiting the right of appeal to final decrees, it was obviously the object of the law to save the unnecessary expense and delay of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it, decided in a single appeal." Per Taney C. J. in Forgay v. Conrad, 6 Howard (U. S.) 205.

A decree that a community of gains existed between husband and wife, and ordering an account to be taken, is not final, and an appeal does not lie. Perkins v. Fourniquet, 6 Howard (U. S.) 206. A decree rendered on the trial of a feigned issue, directed out of Chancery, is an interlocutory judgment, from which no appeal can be prosecuted. Woodside v. Woodside, 21 Ill. 207. But where the decree decides the right to property, and directs it to be delivered up or sold, or a sum of money to be paid, and the plaintiff is entitled to have such decree carried into immediate execution, this is a final decree from which an appeal lies. Forgay v. Conrad, 6 Howard (U. S.) 201. This does not, however, extend to mere transfers of the possession, for the purpose of securing property in litigation, such as payments into Court, appointments of receivers, and the like. Ib. See ante, "General Nature of Decrees."

1 Palmer's Prac. of the House of Lords, 1.

2

3 P. Wms. 108; Rochfort v. Earl of Ely, 1 Bro. P. C. 450.

14 & 15 Vict. c. 83.

ing decisions in matters of bankruptcy, shall be subject to appeal to the House of Lords in the cases and under the conditions in and under which the like decisions, decrees or orders of the Lord Chancellor would have been subject to such appeal if this Act had not been passed, but the appeal to the House of Lords in matters of bankruptcy shall be only on matters of Law or Equity, or on the rejection or admission of evidence, and on a special case to be approved and certified by one of the Judges of the Court of Appeal hereby constituted, whose determination on the settlement of such case shall be final and conclusive."

By a Standing Order of March 24, 1725,1 no petition of appeal can be received after five years from the signing and enrolling or extracting of such decree or sentence, and the end of fourteen days after the first day of the session or meeting of Parliament next ensuing the said five years, unless the person, entitled to such appeal, be within the age of one-and-twenty years, or covert, non compos mentis, imprisoned or out of Great Britain or Ireland; in which case such person shall be at liberty to bring his appeal within five years next after such disability shall cease, and fourteen days after the first day of the session next ensuing the said five years, but not afterwards. This Order was amended in 1829, by substituting two years for five, within which the party must bring his appeal, and by ordering that in no case shall any person be allowed a longer time on account of mere absence to lodge an appeal, than five years from the date of the last decree appealed against. It has, however, been held, that an appeal brought from a decree more than five years after its enrolment was saved by being extended to subsequent orders, the appeal from which was brought within two years from enrolling them. In Hicks v. Cook, however, the Lords affirmed the decree, wholly because of the acquiescence.5

1 Lords' Journ. 1725.

2 See 4 Cl. & Fin. 562.

* De Burgh v. Clarke, 4 Cl. & Fin. 562.

* 4 Dow. 29.

'Where the time for appealing has been fixed by statute, the Court has no power to extend it, not even on the ground of the mistake of the party; and the lapse of time is an absolute bar to the appeal. Townsend v. Townsend, 2 Paige, 413; Barclay v. Brown, 7 ib. 245; Caldwell v. Mayor, &c. of Albany, 9 ib. 572. Nor can the Court vacate the order, and cause it to be entered as of a more recent date, to enable the party to appeal therefrom, ib.; Caldwell v. Mayor, &c.