Hagthorp v. Hook's Adm'rs D. B. N.

delivered the opinion of the court.

A motion being made to dismiss the appeal to this court, on the ground, that the Chancellor decided nothing in controversy between the parties which can properly form the basis of an appeal; to present a view of the question, but few of the facts .contained in the record need be stated.. The appellee sought to recover certain leasehold and personal property, with the rents and profits arising therefrom. The right to such recovery being resisted by the defendants, and much testimony in relation thereto, being taken under commissions issued for that purpose; after the case had been argued, the Chancellor, in his explanatory or introductory remarks to what he was then about to order, discusses at great length many rules and principles of equity and a great variety of facts, all of which he considers clearly in favour of the appellee, and announces his intention at some future time to decree accordingly: and to enable him to do so, he passed the following order, viz: (See the ■order ante, p. 307.)

From this proceeding of the Chancellor, the present appeal has been prosecuted; and the only question submitted to our consideration is, does this order so settle or materially affect all or any of the rights or interests in controversy between the parties, as to make it a decretal order from which an appeal would liejagreeably to the provisions of the acts of Assembly of 1785, ch. 72, and 1818, ‘ch. 193 ? We are clearly of opinion that it does not To ascertain what has been decided by the •Chancellor, we must look to the order itself. If its expressions be explicit, unequivocal, we need search no further for its import; but must give it that interpretation which it bears upon its *309face. If its construction be ambiguous; then, as the best key to its exposition, we must refer to the introductory remarks of the Chancellor upon which it was founded. In the present order there is no doubt, no ambiguity; and its operation cannot be enlarged by the prefatory observations with which it is connected. Indeed, they are in perfect accordance with its literal, obvious meaning; and demonstrate, that all which the Chancellor designed to adjudicate, was, that the auditor should state certain accounts indispensable to the determination of the questions in litigation. Such an order is a mere preparative to the decisions of the cause; and not decretal. Tis true the Chancellor, in considering this case, has discussed all the matters both of law and fact, which he deemed in any wise involved in the decree, eventually to be pronounced; and has distinctly declared what he intends to decree. But his.intentions form no ground for an appeal: he may abandon or change them ad libitum, ; until carried into effect, no injury can result from them. It is only, from what he has done, and not from what he intends to do, that an appeal will lie. All that he has done is to direct an audit: every disputed right and interest of the parties remains undetermined; and is, by the express declaration of the Chancellor, to be settled by his future decree. Until such decree be passed, upon application a commission to take furthér testimony might issue, an unquestionable title to the relief prayed for might be made out. If we now sustain the jurisdiction we are called on to exercise, and, in accordance with the appellants views, dismiss the appellees bill of complaint: we deprive him of all such opportunity of strengthening his claims for relief; we in fact become a court of original not of appellate judicature. We usurp the authority of the Chancellor, and reverse decrees which he never did make, and perhaps never would have made. Such .a proceeding is utterly inconsistent with the character and attributes of a Court of Appeals.

But reasoning upon this subject is unnecessary : the question is put to rest by the authority of Snowden et al vs. Dorsey et al. 6 Harr. & Johns. 114: a case not distinguishable from that now before us. There the Chancellor upon a bill filed for the con*310veyance of land, ordered an account to be taken of the rents and profits; and in the statement of his views introductive of that order pronounced his opinion Jas here) that the complainants claim to relief had been established. Yet, upon an appeal from such order, after argument, and a thorough examination of the practice and decisions upon the subject, this court dismissed the appeal, as being prematurely taken to an order, not decretal.

It was urged in the argument of the appellants counsel, that the right of appeal in this case was fully established by the doctrine settled in Thompson vs. M'Kim, 6 Harr. Johns. 302, But the cases are in no wise analogous. There, as is justly observed by the Chancellor, to warrant the issuing of the order, the facts must be “either admitted or so established as tobe open to no further controversy at any subsequent stage of the proceedings; and the party making the motion for such order must shew that he has an interest in the money called in; and that he who holds it in his possession, has no equitable right or title to it whatever.” Here to justify the order for an audit, no such conclusive establishment of facts is indispensably necessary. There material and irreparable injury was done by the order, let the subsequent decree of the Chancellor be what it might, or although no future decree be ever made. Here no material injury is-infiicted on the appellants unless followed by a decree; and that decree too against them. Here the order is not decretal or final as to the rights or interests of the appellants. There the order is not only_decretal, but in effect final upon the rights and interests of the appellants, and needed not the aid of any future decree or order upon the subject. Ex natura rei, the granting the order to bring the money into court, adjudicated on every right and interest which the appellant claimed. In no future order or decree was it necessary to name or even refer to him; as to all subsequent proceedings, he was no longer a necessary party in court. All that remained to be done in the cause was, an order for the distribution, among the creditors of Heyland of the money brought into court.

*311Strong efforts were made in the argument to distinguish this case from that of Snowden et al. vs. Dorsey et al. founded upon an expression in the courts opinion, in Thompson vs. M'Kim, stating that the order passed in Snowden et al. vs. Dorsey et al. “bore no impress of the Chancellor’s judicial opinion upon the merits of the case.” The order, it was contended, in the case at bar, did hear such an impress. But the weight of the argument rests upon a misconception of this expression of the court. They did not mean to say, that the introductory remarks to the order in Snowden et al. vs. Dorsey et al. bore no impress of the Chancellor’s opinion upon the merits of the case; because the reverse is most palpably the fact: it does hear the impress of his opinion: hut not of his “judicial opinion.” The impress of the Chancellor’s “judicial opinion,” in the sense in which the court have used it, being synonymous with, what he has adjudged or decreed.

Appeal dismissed, but without costs.