Another reason why the distinction is im portant is that a final decree, entered of rec ord and not directed to be without prejudice is a bar to another bill filed between the same parties for the same subject-matter; Cochran v. Couper, 2 Del. Ch. 27.
In England the question whether a decree or order is final or interlocutory is in many cases material, as affecting the right or the time of appeal, and it has been much dis cussed with some contrariety of opinion. In [1903] 1 K. B. 547 (C. A.), Lord Alver stone, C. J., stated "the test" to be whether the order did in fact finally dispose of the right of the parties, without respect to what would have been the effect of the order if the case had been dedded the other way, and the court of appeal unanimously so decided, following the decision in 9 Q. B. D. 62, and disapproving a later ruling in [1891] 1 Q. B. (C. A.) 734, where it was held that an order would be considered interlocutory unless "whichever way it went it would finally determine the right of the parties," and which was cited as authority in [1902] 1 Ch. 29. Subsequently it was said by Cozens-Hardy, M. R., in [1907] 2 Ch. 145, that only a short time before the full court was summoned "with a view to laying down some definite pronouncement or rule" on the question "what order is interlocutory and what is final," characterized by him as "un doubtedly one of very great difficulty," but the court had declined to do so, confining it self to the decision of the particular case, and this course he proposed to follow. in the case to which he referred, [1906] 2 K. B. 569, Collins, M. R., emphatically disapproved of "the enunciation of any general rule on the question what orders are final and what interlocutory," and considered that it should only be done by general rule of court.
In this country the same difficulty of ex act definition was expressed by Mr. Justice Brown, who said that "probably no question of equity practice has been the subject of more frequent discussion in this court," and he reviewed the cases, remarking that they "are not altogether harmonious"; McGourkey v. Ry. Co., 146 U. S. 536, 13 Sup. Ct. 170, 36 L. Ed. 1079; the principal ones being also collected by Mr. Justice Blatchford in Key
stone. Manganese & Iron Co. v. Martin, 132 U. S. 91, 10 Sup. Ct. 32, 33 L. Ed. 275.
Where the whole law of a case is settled by a decree, and nothing remains to be done, unless a new application be made at the foot of the decree, the decree is a final one so far as respects a right of appeal; French v. Shoemaker, 12 Wall. (U. S.) 86, 20 L. Ed. 270; and so is a decree dismissing bill with costs, although they be afterwards taxed and decree entered for them; Fowler v. Hamill, 139 U. S. 549, 11 Sup. Ct. 663, 35 L. Ed. 266; but a decree of foreclosure and sale is not final, in the sense which allows an appeal from it, so long as the amount due upon the debt Lust be determined, and the property to be sold ascertained and de fined ; North Carolina R. Co. v. SwaseY, 23 Wall. (U. S.) 405, 23 L. Ed. 136; see Jones v. Davenport, 45 N. J. Eq. 77, 17 Atl. 570; nor is an order remanding a case to the state court; Joy v. Adelbert College, 146 U. S.355, 13 Sup. Ct. 186, 36 L. Ed. 1003; but a de cree for foreclosure and sale of mortgaged premises is final and may be appealed from without waiting for the return and confirma tion of the sale by a decretal order ; Michoud v. Girod, 4 How. (U. S.) 503, 11 L. Ed. 1076. And so is a decree ordering the dismissal of a libel if not amended within ten days, where an appeal is taken without amending it; The Three Friends, 166 U. S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897. When the finality is in doubt, and was negatived by the court below, but Is claimed in the Supreme Court, the doubt will be resolved against finality; McGourkey v. Ry. Co., 146 U. S. 536, 13 Sup. Ct. 170, 36 L. Ed. 1079.
A decree fixing the priority of claims against an insolvent corporation, and di recting the sale of its property for their payment, is a final decree within equity rule 88, relating to rehearings; Hoffman v. Knox, 50 Fed. 484, 1 C. C. A. 535. A decree is final which disposes of every 'matter of conten tion between the parties, except as to the amount of one severable item, not relating to appellant, and refers the case to a master to ascertain that ; Hill v. R. Co., 140 U. S. 52, 11 Sup. Ct. 690, 35 L. Ed. 331.