¶1 The above entitled cause in equity is pending in this court upon appeal from the final decree of the Superior Court. It is before us at this time on the respondent’s motion in which he sets out that, at the trial of the cause in the Superior Court, by reason of accident and mistake he was deprived of the testimony of one Edgar E. Mowry, which testimony was material and relevant to the issues in the cause and which, if it had been presented at the trial and believed by the Superior Court, might have caused that court to come to a different conclusion. Relying upon the provisions of Section 30, Chapter 339, Gen. Laws 1923, the respondent moves for leave to present said testimony before this court that the same may be considered in the determination of the appeal.
¶2 We have examined the affidavits filed in support of the motion and also the counter affidavits introduced by the complainant. We are of the opinion that justice requires that the respondent be permitted to have the testimony of said witness before us as part of his evidence upon the appeal.
¶3 In. granting leave for the taking of new evidence to be used in this court upon an appeal in equity, the court in each case will make such special order as appears to it to be appropriate in the circumstances of the case.
¶4 It is ordered that on December 15, 1926, at the time of hearing the appeal upon its merits, the respondent may present Edgar E. Mowry as a witness for oral examination before us upon the issues in the cause, and at that time the complainant majr present such witnesses as she may have for oral examination in rebuttal.