
    Price v. Strange.
    Monday, October 10, 1808.
    Interlocutory Decree — Case at Bar, — An order of the Superior Court of Chancery reinstating- an injunction, and directing a new trial, of an issue at law, is not an interlocutory decree from which an appeal can be allowed.
    The Attorney-General, as a preliminary point, moved to dismiss the appeal, which he contended, had been improperly allowed, in this case, by the late Chancellor.
    The facts were these : Strange filed a bill in the Superior Court of Chancery for the Richmond District, praying for an injunction to a judgment of the County Court of Fluvanna, on the ground that the cause had been tried in his absence,at a time when he was disabled from attending Court by severe indisposition, and also that his attorney had neglected to attend to his business ; that the suit having been tried on the last day of the term, he was deprived of an opportunity of moving for a new trial till the next Court, when, befpre a different set of magistrates, he made the attempt, but it proved unsuccessful. He stated a variety of matter for the interposition of a Court of Equity.
    The Chancellor granted the injunction ; but, upon the coming in of the answer, dissolved it. At a subsequent day, he reinstated the injunction, and directed a new trial of the issue at law. From this order, Price took an appeal.
    "The Attorney-General, for the ap-pellee, insisted that the order of the Chancellor was a mere interlocutory proceeding in the cause, instituted for the purpose of informing his conscience as to the merits of the question, before he could be prepared to render a final decree.' Although an appeal might be allowed, by the Chancellor, from an interlocutory decree, yet it must be such a decree as affirmed or disaffirmed some right of either party. 
    
    Randolph,, for the appellant,
    contended, that this was not the ordinary case of an interlocutory order. Price had obtained a judgment at law ; and th.e object of Strange's bill was to have a new trial. By granting a new trial of the issue at law, the right of Strange had been affirmed, and that of Price disaffirmed. As long as the order for a new trial remained unexecuted, the judgment of Price would be suspended by the injunction.
    
      
      See monographic note on “Decrees” appended to Evans v. Spnrgin, U Gratt. 615.
    
    
      
       The law, by which the Court of Chancery is authorised to grant appeals from interlocutory decrees, is in these words: “-It shall be lawful for the High Court of Chancery, upon any interlocutory decree, where the right claimed shall have been affirmed or disaffirmed, to grant, in its discretion, an appeal to the Court of Appeals, if the High Court of Chancery shall be of opinion, that the granting of such appeal will contribute to expedition, the saving of expense, the furtherance of justice, or the convenience of parties.” See Rev. Code, vol. 1, p. 375.
      Under this act, it has been held, that although the High Court of Chancery might allow an appeal from an interlocutory decree, yet that the Court of Appeals could not do it. 1 Hen. & Munf. 553, Bowyer v. Lewis. 2. That appeals from interlocutory decrees must be allowed, if at all, by the Chancellor in Court, and not by the Judge in vacation. Ante, p. 12, Dawney v. Wright, The President, &c. of William and Mary College v. Lee’s Executors, and Fairfax v. Muse’s Executors. — Note in Original Edition.
      (c)Rev. Code, vol. 1, c. 223, p. 375.
    
   Thursday, October 13. The Judges delivered their opinions.

JUDGE TUCKER.

This was an injunction to a judgment at law. The Chancellor, on a motion for that purpose, ^dissolved the injunction; but at another day reinstated it, and directed a new trial, and that the verdict should be certified to the Court of Chancery. From this order an appeal was taken.

The verdict not .having been set aside alto-, gether, but only a new trial directed, in order to inform the conscience of the Chancellor, I am of opinion that the right was not so far determined as to authorise an appeal : and that this appeal should now be dismissed as having been prematurely allowed.

JUDGE ROANE.

This is an appeal from an order of the Court of Chancery, reinstating an injunction, which had been dissolved, and directing another trial of the issue, in the action at law, in which the judgment enjoined was rendered.

X presume that so much of this order as reinstates the injunction, is as little the subject of an- appeal, as an order granting an injunction ; and in that case, the allowance of the injunction by the Judge neither affirms nor disaffirms the right of the defendant to avail himself of his judgment at law, but merely suspends the effect of such judgment, until the further order of the Court, or until the matter can be heard in equity. That case, therefore, does not come within the act of 1798, (c) which extends only to cases, where a decision upon “the right claimed,” shall have been given, although a final decree has not been rendered in the cause. It is a solecism to say, that an appeal lies for the purpose of correcting an erroneous opinion of an inferior Court, in a case, in which, in fact, no decision has been given. Neither is the case otherwise, in relation to that part of the order, which directs another trial of the issue. This award of a new trial has no manner of effect upon the rights of either party : but is only preparatory to a decision thereupon, to be afterwards rendered. It is not by virtue of the award of the new trial, but in consequence of the granting or reinstating the injunction, that the right *of the defendant is affected: but that right is affected (as is before said) by no decree, affirming or disaffirming the same, but only by an order enjoining or suspending it.

I am therefore of opinion, that the Court of Chancery had no right to grant, nor this Court to entertain, this appeal, but that it ■ought to be dismissed, and the cause sent back to be proceeded in.

JUDGE FEEMING said, it was the unanimous opinion of the Court, that the appeal had been prematurely allowed, and ought to be ■dismissed.  