· woosrizs v. amor. 53
of the Revised Statutes, in this language: "at any time before the
trial or una] hearing of the suit."
In reference to this act of 1867 it was said by Chief Justice Wirrn,
in Vannevar v. Bryant, 21 Wall. 41, 43: “The act authorizes the
petition for removal to be filed ‘ at any time before the hnal hearing
or trial of the suit.’ The hearing or trial here referred to is the ex-
amination ofthe facts in issue. * Hearing ’ applies to suits in chancery
and *trial’ to actions at law." In the same case, sub nom. Bryant v
Rich, 106 Mass. 180, 192, it was said by Justice GRAY, that the words
“final hearing or trial," in the act of 1867, would seem to be equiva-
lent in meaning to the words "trial or Hnal hearing," in the act of
1866. In reference to these words in the acts of 1866 and 1867, it
is said by Judge Dinnoiv, in his work on the Removal of Causes, (3d
Ed. c. 15, § 59, p. 73,) as the result of numerous authorities cited:
"Under this language, the petition for the removal may, it is certain,
be made at any time before entering upon the final trial, or the hear-
ing on the merits."
In Doughty v. West, Bradley tt? Cary Manzg”’g O0. 8 Blatchf. C. C.
107, it was said by ‘Woor>nUrr, J., in 1870, in reference to the allow-
ance of a docket fee under section 1 of the act of 1853:
" * Trial ’ and ‘ final hearing ’ have well—known definite meanings in the law,
and they-are used in this statute in that well-known sense. ‘ Trial ’ is used
to describe the process of determining the issues in an action at law; and
• final hearing,’ the submission ofthe case, for a determination thereof, upon
the pleadings. or pleadings and proofs, or otherwise, so that the case may be
finally disposed of." A
The distinction between interlocutory applications and final hear-
ings is a fundamental one in equity proceedings; and, when the ex-
pression "nnal hearing" is used in reference to an equity suit, it is
used in contradistinction to an interlocutory application.
In 2 Daniell, Ch. Pr. c. 35, § 1, (4th Amer. Ed. 1587,) it is said:
"An interlocutory application is a request made to the court, or to a judge
in chambers, for its interference in a matter arising in the progress of a cause
or proceeding; and -it may either relate to the process of the court, or to the
protection of the property in litigation pendente lite, or to any matter upon
which the interference of the court or judge is required before or in conse-
quence of a decree or order. "
This distinction is recognized in the rules in equity prescribed by
the supreme court. Rule 1 is as follows:
"The circuit courts, as courts of equity, shall be deemed always open for the
purpose of filing bills, answers, and other pleadings; for issuing and return-
ing mesne and final process and commissions; and for making and directing
all interlocutory motions, orders, rules, and other proceedings preparatory to
hearing of all causes upon their merits." _
This rule went into effect August 1, 1842, and has been in force
ever since. So, in rule 29 of the rules in adrniralty prescribed by
the supreme court, it is provided that a default in answering a libel
may be set aside, and an answer allowed, "at any time before the dual