These questions, must be decided, by ascertaining the true intention of the court of errors.
The principal reason for reversing the decree of this court, was, that the suit had been decided against the defendant Hopkins, upon proofs taken before he was a party in the cause. The court of errors evidently supposed, that if this court bad not allowed the proofs taken against Carpenter, to be used against Hopkins, proofs would have been taken between the complainant and Hopkins : and that court seems to have considered the want of any testimony between the complainant and Hopkins, as an omission produced by an error of this court, rather than by any fault of either party..
If the court of errors had intended to determine this suit finally, in favor of Hopkins, such, an intention would have been expressed; and that court would have dismissed the supplemental bill, or would have directed, that it should be *579•dismissed by this court. But no such intention has been ex' pressed by the decree of the court of errors ; and the reasons ■of that court sufficiently show, that the reversal was not intended to be a final determination of the cause. The intentention of that court must have been, to reinstate the cause, and open it to new proofs between the complainant and Hopkins.
This intention is explicitly declared by one of the members of that court, Mr. Golden, in these words: “ My opinion “ is, that the decree be reversed, and that the cause be re- “ mitted to the court of chancery, under such an order as-56 shall permit the appellant to prove his answer, as if he had “ been an original party to the suit.” The cause must therefore be considered as at issue and open to proofs, between the complainant and Hopkins.
This opinion having been given by the court, the parties agreed, that the disputed facts should be tried by a jury : and an issue was accordingly directed.