dence of a witness examined in the cause, and read at the former hearing, that he had since, by answer to a bill exhibited against him, confessed, that on the day he was examined, the plaintiff gave him a bond, that if he recovered the land in question, he would convey part of it to the witness. By the opinion of the Lord Keeper, assisted by two judges, this answer was ordered to be read. Needham v. Smith, 2 Vern. 463 (n).

The Court may either confirm the decree, reverse it altogether, or vary it. If the decree is affirmed, it is in the discretion of the Court, either to refuse costs to either party, or they may order the deposit to be paid to the respondent, or to be divided, or direct the appellant or petitioner to pay the respondent his taxed costs. But, as before stated, they cannot order the respondent to pay costs. If the decree is reversed, or varied, the Court may deal with the deposit, but cannot order the respondent to pay costs, if he has confined himself to the appeal, and has not opened the whole case.

On the hearing of a petition of appeal presented by the defendants, liberty was given to the plaintiffs to amend their bill, by making it either a bill and information, or an information. President of St. Mary Magdalen, Oxford, v. Sibthorpe, 1 Russ. 155.

Where the decree has declared the rights of a party, and another person seeks to establish a claim upon the subject, not in contravention of the decree, but founding his claim upon the basis of such decree, and then seeking to enforce his own claim upon such recognized right, a petition of rehearing is not necessary; as where between A. and B. the Court have declared B. entitled to a fund, and C. claims a lien upon such fund. So where a sum of stock claimed as a legacy by A. was ordered by the decree to be carried over to the account of A., subject to the further

order of the Court, with a direction that it should not be sold or transferred without notice to B., it was held that the Court might, upon petition, without rehearing the former decree, order the money to be paid to B., if his title appeared to be the better of the two. Barksdale v. Abbott, 3 Russ. 186.

APPEAL MOTION.

If a party is dissatisfied with the decision of the Master of the Rolls, or of the Vice Chancellor on a motion, it is not necessary to present a petition of appeal, or of rehearing to vary the same; but the party is at liberty to give a notice of motion before the Lord Chancellor, to discharge or vary the order of the Master of the Rolls, or of the Vice Chancellor. The notice of motion is served and the motion made in the usual manner. No deposit is required to be made, nor is any signature or certificate of counsel requisite as to the propriety of the appeal motion. On a motion to discharge an order made by the Vice Chancellor, affidavits may be read, sworn after the order was made, and stating facts which were not before the Vice Chancellor. Const v. Barr, 2 Russ. 161.

APPEAL PETITION.

If the party was dissatisfied with a decision pronounced on the hearing of a petition, by the Judge below, the Court, assimilating the practice to that applied to the case of an appeal motion, allowed the same to be rectified by a petition, to vary or to discharge the order on the petition, and did not require that either an appeal or rehear

ing should be presented, or that any deposit should be made. In the Orders of 5th June, 1725, the only subjects mentioned as proper for a formal appeal or rehearing are, from the judgment pronounced in a cause or on exceptions, pleas or demurrers, Beames, 334. The Order of 9th July, 1725, is limited in a similar manner, idem 337; and in the various orders of Court, directing a deposit to be made on presenting a petition of appeal or rehearing against decrees or exceptions, no provision is made for the case of an appeal petition. Idem, 458. A petition (in which the author was concerned, presented about 1833) to vary or discharge an order was answered by the secretary, as an appeal petition, and he required the certificate and signature of two counsel, and the fiat ordered a deposit of 107. to be made, and that the petition should be set down next after the rehearings and appeals already set down. The author has not been able to discover under what order of Court the 10%. was directed to be deposited; and so much of the fiat as directed the petition to be set down after the rehearing and appeals was disregarded in the registrar's office, and the petition was set down, and came on to be heard together with the other cause petitions, and not after the rehearings and appeals. It does not appear that the question was ever brought to the attention of the Court, but it is desirable it should be understood, whether an appeal petition may be presented in the same manner as an appeal motion, or whether the strict formalities of a regular appeal are to be required. The matter is one of discretion in the Judge, and it is only for him to decide in what form the same is to be presented.

According to the present practice, if a party is dissatisfied with an order pronounced on a petition, and seeks to reverse, discharge, or vary the same, he must present a regular petition of appeal, procure a certificate of

its propriety, the signature of counsel and of the clerk in court, and make a deposit; and the only difference made between it and an appeal from a decree is, that instead of its being set down after the rehearings and appeals, it is set down to be heard with the cause petitions.

An order made, as of course, upon petition at the Rolls, if irregularly or improperly obtained, may be discharged, upon motion before the Master of the Rolls. Lees v. Nuttall, 2 M. & K. 284; or it may be discharged upon motion before the Lord Chancellor. Eastwood v. Glenton, 2 M. & K. 280. In this case the Lord Chancellor said that such a proceeding was consistent with the practice of the Court, though such practice was inconvenient, and might require to be amended by a general order.

APPEAL FROM AN ORDER ALLOWING OR DISALLOWING A PLEA OR DEMURRER, etc.

If a party is dissatisfied with an order of the Court below, made on the hearing of a demurrer or plea, or on exceptions to a Master's report, he must present a petition of appeal or rehearing, and proceed in the manner explained in treating on appeals and rehearing from a decree or decretal order.

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CHAPTER V.

APPEAL TO THE LORDS.

If a party feels himself aggrieved by a decree or order of the Lord Chancellor, the only court of appeal open to him is the House of Lords. If dissatisfied with a decree or order of the Master of the Rolls, or of the Vice Chancellor, he is at liberty either to appeal to the Lord Chancellor, or he may appeal direct to the House of Lords, without the necessity of appealing through the Lord Chancellor. To enable a party to appeal in this summary manner from a decree or order of the Master of the Rolls, or of the Vice Chancellor, to the House of Lords, the same must be formally recognised and adopted by the Lord Chancellor, which is done without a hearing, by the decree or order being enrolled and signed by him.* Unless the decree is signed and enrolled, an appeal does

not lie direct either

from the Master of the Rolls, or from the Vice Chancellor, to the House of Lords. Cunyngham v. Cunyngham, 1 Amb. 91.

An appeal lies to the House of Lords not only from a final decree, but also from any interlocutory order. Palmer, 1. An appeal cannot be regularly brought from an

By the ancient practice of the House of Lords, no appeal was allowed until the decree was signed by the Lord Chancellor. See 4 Bro. P. 198. In appealing from a decree of the Lord Chancellor, the House of Lords do not now appear to require the decree to be enrolled. This practice may lead to inconvenience if the opposite party should present a petition of rehearing to the Lord Chancellor on any point, as it would stop the appeal to the Lords.