The following opinions were delivered:
By Mr. Justice Nelson.The chancellor I think was right in laying out of consideration, the newly discovered evidence of the fact of the consent of Mitchell to the assignment to the new trustees, that was presented on the hearing of the appeal. The practice would be inconvenient and liable to abuse.
The language of the statute prescribing and regulating appeals fairly imports that the case is to be heard upon the pleadings and proofs as they existed in the court below. The chancellor is authorized to direct “ the manner in which appeals shall be brought to a hearing before him; and the papers and documents which shall be transmitted therewith, and by whom.” 2 R. S. 178, § 61. This has been done in the 116th, 117th, 119th and 120th rules of the court of chancery, and obviously with reference to the hearing of the appeal on the original papers. The 64th section, 2 R. S. 178, also declares that an appeal shall not be made from any order or decree of a vice chancellor to the court for the correction of errors, until brought before the chancellor for review, and shall have been by him reversed, modified or affirmed ; very clearly indicating that his jurisdiction is appellate, and confined to the pleadings and proofs upon which the case had originally beén heard in the court below. This being my view of the statute, I deem it not material to look into the practice in England in the supposed analogous case of an appeal from the master of the rolls to the lord chancellor. If the legislature, had not intended that the hearing of the chancellor should be strictly a review and nothing more, they would have provided for the introduction of fresh evidence. Reverse and affirm áre not appropriate terms, where the correctness of the order or decree below, is made to depend upon the production of new testimony. If that had been intended, the appeal per se ought to have opened such order or decree, and the case put upon the footing of a proceeding de novo, as to proofs and hearing. [The judge here went into a full examination of the pleadings *667and proofs, as they existed before the vice chancellor, and concurred in opinion with the vice chancellor and chancellor, that the evidence was amply sufficient to justify the conclusion that the appellant had assented to, or subsequently ratified the assignment to the new trustees 5 and accordingly was of opinion that the decree of the chancellor ought to be affirmed.]
By Senator Tracy.The complainant's bill was dismissed by the vice chancellor, on the ground that the defendants had legally discharged themselves from the trust originally conferred on them by the complainant, by transferring it to other persons. It is admitted, or if not admitted, it is clear that such a transfer could not be effectual, except by the act of the complainant, or by something equivalent on his part. There was before the vice chancellor no evidence to show the act by the complainant, but the equivalent for the act was sought in circumstances creating a presumption that he acquiesced in the act of the defendants, by which they intended to transfer the trust. No doubt acquiescence, under some circumstances, is equivalent to an express assent, or ratification, so that equity will conclude a party equally as if he had executed a formal deed; but acquiescence presupposes perfect knowledge of facts; for though there is a silent “ cunning in dumbness,” there cannot be in law an unintentional assent. The burthen of proving knowledge of a fact is therefore necessarily throw upon him who proposes to conclude another by his acquiescence in it. In this case, before the vice chancellor, there was no certain proof that the complainant ever knew of the deed of assignment from the defendants to M’Evers, Ogden and Day. Undoubtedly there are circumstances to create a strong presumption that he knew of it; but unless knowledge of the fact is clearly shown, it seems to me there is nothing from which acquiescence in the fact can be safely inferred. It is drawing one presumption from another; inferring a conclusion from promises, which themselves are only inferential. A party is to be concluded as though he had executed a formal deed, which he did not execute, on the ground that he acquiesced in its execution by others, without *668positive proof that he ever knew of its being executed at all. To say the best of it, this is a loose and dangerous mode of creating parties to formal and solemn instruments. I know no case where the doctrine of acquiescence is carried to such an extent. The cases cited for the defendants do not reach this difficulty.
But the vice chancellor thinks the knowledge of the complainant was not left to inference, but is positively proved by the testimony of Brower ; and the chancellor puts his concurrence in the vice chancellor’s decree on the same testimony. He thinks “ there is scarcely a possibility that the complainant should not have known of the new assignment, and that the trustees were proceeding to execute the trust under the same.” I am not able to discover this conclusiveness in Brower’s testimony. It undoubtedly shows that the complainant must have known that the estate was in the management of Mr. Day ; but so far from its proving positively a knowledge of the deed of transfer, by which the defendants claim to be relieved from the trust, it does not clearly appear that this deed was known by the witness himself. The receipts for dividends are not calculated to prove the complainant’s recognition of the transfer, but rather the reverse, as the original assignment to the defendants is the only one to which they refer. The time elapsed since the trust was transferred, and that it was done openly and no concealment attempted, amount to nothing, unless knowledge in the complainant is proved. This knowledge it is, that can alone give any force to the transfer of the trust;, The defendants, by taking the original assignment from the complainant, had incurred a responsibility to him, from which he alone could relieve them. It is not, therefore, the existence of the deed of transfer, purporting to be made with the assent of the complainant, but his knowledge of such a deed, and his acquiescence in it, that must release the defendants from their original liability. Such a knowledge should be proved with the same certainty as the deed of transfer itself, before any thing is established from which the complainant's acquiescence can be inferred. A mere balance of probabilities can never form a safe basis for a *669conclusion, from which another conclusion is to be inferred. The testimony before the vice chancellor leaves it uncertain whether the complainant knew of the deed of transfer, and until it is certain that he knew of it, I can find nothing to justify a conclusion that he acquiesced in it.
The more interesting question which the case presents, is whether the defendants were entitled to introduce new testimony before the chancellor which was not before the vice chancellor 5 or in other words, whether an appeal from a vice chancellor to the chancellor is only a re-hearing in the same court, or is a review by an appellate tribunal of the very case as it was presented at another tribunal. If it should be conceded that such an appeal is only a rehearing in the same court, it would still be carrying the doctrine of new proof to an unknown length, to allow its introduction by the party in whose favor the decree is already made. Chancellor Kent in Dale v. Roosevelt, 6 Johns. Ch. R. 255, gives the rule for introducing such proof on a rehearing. “ A party,” he says, “ may no doubt be let in, to read fresh evidence, not read on the former hearing ; but it must be evidence already duly taken and omitted, or such testimony as might be given viva voce at the hearing, or that goes to show the incompetency of a witness in a former deposition.'’ Lord Eldon, 2 Russell, 91, says, on a rehearing, testimony may be read that was not read at the first hearing, but it must be such as had been taken before the first hearing. But an appeal from a vice chancellor to the chancellor is not a rehearing at the same tribunal, but a review of the same case by a distinct and superior tribunal. The organization of our court of chancery in this respect differs from that of England. There every decree in chancery is enrolled as the decree of the lord chancellor, and must be signed by him. It is because every decree of the master of the rolls has to bo enrolled as the decree of the lord chancellor that Lord Parker says, in Wright v. Pillings, Precedents in Chancery, 496, he would consider the cause open before him, and the party against whom the decree was, at liberty to offer what he could against signing and enrolling it. This is the principle of the decisions, 1 Vern. 442, and 2 id. 463, and again in 13 Vesey, 423.
*670In 2 Russell, 91, Lord Eldon says, “If what is called an appeal from the rolls be only a rehearing, there is stronger ground for saying that an appeal from the vice chancellor is only a rehearing ; for the vice chancellor, where he hears a cause, hears it for the lord chancellor.” To see the propriety of this remark, it is only necessary to refer to the act of 53 Geo. 3, ch. 24, establishing the office of vice chancellor, which not only subjects all his orders, decrees or acts to reversal, discharge or alteration by the lord chancellor, but declares that no decree or order made by him shall be enrolled until it shall be signed by the lord chancellor; and so far from an appeal in the natural and legal sense of the word being provided by the act, it is incompatible with its principles. But our law establishing the office, and prescribing the powers and duties of vice chancellors, not only gives to them distinctly the power to sign the enrolled decree, but in express terms makes their proceedings “subject, in all cases, to the appellate jurisdiction of the chancellor.” Vide 2 R. S. 181, § 91. Id. 177, § 55. Other sections, 59 to 62, inclusive, prescribe the right, time, mode and conditions of an appeal, as well where a decree has been, as where it has not been enrolled. Section 64 prevents an appeal to this court, until the order or decree of the vice chancellor shall have been reviewed and passed on by the chancellor. There are other provisions of the statute equally explicit of the design to make the review by the chancellor strictly of an appellate character, as much so, I imagine, as is the review by this court of the judgments of the chancellor and of the supreme court. But it seems unnecessary to make further references ; as it also does to press in considerations of general policy to sustain positive legislative enactments, although were they equivocal, there could be found abundant and forcible reasons for fixing landmarks and defining limits for the chancellor’s discretion, in cases of such appeal.
Concluding, as I do, that the vice chancellor decided wrong upon the evidence before him, and that the new evidence which thechanccllor permitted to betaken cannot be used in aid of the vice chancellor’s decree, I am still disposed to adopt the chancellor’s suggestion as to the form of judgment to be rendered : *671that is, to reverse the original decree, and send the cause back to the vice chancellor, with instructions to permit the rule for closing the proofs to be opened, and new testimony admitted, on such terms as he may deem equitable.
An opinion was also delivered by Senator Edwards, substantially concurring in the opinion delivered by Mr. Justice Nelson.
On the question being put, Shall this decree be reversed ? all the members of the court, (twenty being present) with the exception of Senator Tracy, voted in the negative. Senator Tracy voting in the affirmative.
Whereupon the decree was affirmed.