Camden and Amboy Railroad Co. v. Stewart. The bill then contained certain other statements which were the subject of exception by the defendant, on the ground of impertinence. These statements are sufficiently indicated in the opinion delivered. The exceptions being sustained by the Chancellor, this appeal was brought from that decision. The opinion of the Chancellor is reported in 4 C. E. Green 345. Mr. Gilchrist, Attorney-General, for appellants. Mr. J. Wilson and Mr. P. D. Vroom, for respondent. The opinion of the court was delivered by THE CHIEF JUSTICE. The question was raised on the argument of this cause, whether an order sustaining exceptions to a bill on the ground of impertinence, was subject to an appeal to this court. The objection to such a course of proceeding appeared to be that the order was one merely incidental in the progress of the cause, and which was addressed to the discretion of the Chancellor. The language of the statute upon this subject is, that "all persons aggrieved by any order or decree of the Court of Chancery may appeal from the same, or any part thereof, to the Court of Errors and Appeals." Nix. Dig. 116, pl. 80. From the terms here used, it is clear that the intention was to give a wide scope to appeals. The only limit imposed on the right is the circumstance that the party appealing must be, in a legal view, "aggrieved" by the order sought to be reviewed. This restriction obviously excludes from the category of appealable matters, all orders which lie wholly in discretion, and which have no tendency to affect any right in litigation. It was on this ground that this court declined to take cognizance of an appeal from an order of the Chancellor refusing to pass to a general guardian moneys derived from the sale of the minor's real estate. In the matter of Anderson, 2 C. E. Green 536. The same princi Camden and Amboy Railroad Co. v. Stewart. ple is recognized in Garr v. Hill, 1 Halst. Ch. 641, and The Attorney-General v. Paterson, 1 Stockt. 625. But these decisions simply show that there are specific cases which are not the objects of appeal. They provide no practical test, nor do they establish any general rule. And, indeed, a little reflection will satisfy any one that it is not possible to adopt any universal criterion. Thus, in Rogers v. Hosack's 'Ex'rs, 18 Wend. 329, the Court of Errors of New York held that no appeal would lie from an order of the Chancellor refusing to remove an executor and to appoint a receiver in his stead, and Mr. Justice Cowen, attempting a general definition, said: "I understand the line of authorities to stand almost without exception, that to warrant a reversal upon appeal from chancery, some definite rule of law or equity must appear to have been violated." Other judges have said that any order which affects the merits of the question, or touches the rights or interests of the parties, is appealable. But any attempt to apply any of these definitions of the scope of appellate jurisdiction, will at once show that they are entirely too general and abstract to have controlling effect as rules of practice. All persons will probably admit that an order which does not, in any degree, reach to the merits of the controversy, or affect the substantial rights of a litigant, does not belong to the appealable class of orders, but the embarrassment is to provide a test by which orders having such an effect can be distinguished. In New York, the subject has undergone reeated and pelaborate discussion, and yet no such test has been discovered. In the case of Beach v. Fulton Bank, 2 Wend. 225, an appeal was entertained from an order of chancery refusing to open proofs in a cause for the purpose of re-examining a witness, on the ground that such order affected the merits of the cause. On that occasion, Mr. Justice Marcy read a carefully prepared opinion, reviewing all the previous cases, the result reached being that no standard to discriminate appealable from non-appealable Camden and Amboy Railroad Co. v. Stewart. orders, could be devised. In this view the Chancellor and Mr. Justice Sutherland concurred. This subject does not appear to have been discussed to any great extent in the English courts. But the cases in which appellate jurisdiction has been exercised cannot be arranged within any rule having inflexible boundaries. For example: The granting of an issue in a chancery suit to be tried by a jury, is generally regarded as a matter of discretion, and yet in Hampson v. Hampson, 3 Ves. & B. 42, Lord Eldon says: "I agree that a mistake in refusing to send the cause to a jury, is a just ground of appeal, if the Court of Appeals should think that the contrary decision would have been a sounder exercise of discretion;" and it has since even been held that where the House of Lords thought that the court below had directed issues improperly, the order directing such issues would be reversed, and the cause remitted with directions to the Chancellor to decide the matter himself. Nicol v. Vaughan, 2 Dow & Clark 420; 5 Bligh's Appeals 505. Vide etiam Earl of Winchilsea v. Garetty, 1 M. & K. 253; Dudgeon v. Thomson, 29 L. & E. R. 12. Under these circumstances, it is not surprising that the English books of practice are found stating the rule, in the comprehensive language of our statute, that "any person who finds himself aggrieved by a decree or order of the Court of Chancery, is entitled, as a matter of right, to appeal to the House of Lords." 3 Daniell's Ch. Pr. 1633. The ancient order of the appellate court, requiring parties to print their cases forthwith, seems to have been designed as a preventive of appeals merely for delay and vexation, the same end being at present attained by the certificate of counsel that there is reasonable cause for appeal. Id. 1637. From my examination of the authorities, and my reflection on this subject, I am satisfied that it is not practicable to settle any test, which will be applicable in every case, so as to separate into classes those orders which are appealable and those which are not. There are many cases which are Camden and Amboy Railroad Co. v. Stewart. obviously appealable; there are some as obviously not appealable; but there is an intermediate class which cannot be reduced to any fixed rule. When this latter class is to be dealt with, it would seem that this court is called upon to exercise a special judgment in each case, in view of its peculiar circumstances, and having regard to the general proposition above noticed, that an order to be appealable must go, to some extent, to the merits of the controversy, or substantially affect the legal or equitable rights of the party appealing. Looking, then, in this light at the present case, I think it has a foothold in this court. The purpose of exceptions. to a bill or answer is, to strike out something which the party, whose pleading is thus assailed, has deemed important to his case. When therefore an appeal is brought in the course of this proceeding, the basis of it is, that the court below has erroneously suppressed that which the appellant insists is of moment to the complaint or defence, as the case may be. If the appellant therefore be right in such insistment, then obviously he has been aggrieved; that is, he has been deprived of his legal right to a fair statement of the whole of his case. It would be unjust to assume, in limine, that he is wrong in this contention, and on the assumption of his being right, a privilege which the law accords to him has been withheld. The point to be settled by this appeal is, whether the matter put out of this bill be irrelevant or not; if relevant, then unquestionably the striking out was a wrong affecting the rights of the appellant involved in the suit. Upon principle, then, I think this appeal sustainable. There is also a precedent for it to be found in the case, in the House of Lords, of Rickards v. The Attorney-General, 12 Clark & Fin. 30. It becomes, then, necessary to look into the merits of this appeal. The point in dispute between these parties appears to be, whether the defendant, according to the terms of a certain written contract, contained in a receipt set forth in the bill of complaint, agreed to grant to the complainants a general Camden and Amboy Railroad Co. v. Stewart. right of way for their railroad in front of his property, or only right of way over a single track. The bill states the written contract, and certain circumstances tending to show the sense in which the terms of the contract were intended to be used. After a denial that such deed or grant was ever delivered, there is an averment that in a certain suit in chancery in the Circuit Court of the United States, the defendant alleged that he had made and delivered a deed for nine acres of land, and granted therein a right for the complainants to pass in front of his premises with a track of a railroad. Then follows a further extract from this bill in the Circuit Court, containing an additional statement of the defendant, that at the time he delivered this deed he overheard a conversation between certain agents of the complainants, to the effect that they designed fraudulently to suppress this deed, and to claim under the contract in the receipt. The bill then proceeds, after a few unimportant averments, to extract from another and subsequent bill filed by the defendant in the same Circuit Court, an account of the alleged delivery of this same deed, which it is contended is inconsistent with the first above mentioned statement of the same affair. Now I think it can be gathered from the contents of this bill, although it is defective in not containing a direct averment to that effect, that the complainants anticipate that the defendant will set up, by way of defence, that he delivered a certain deed which was received as an execution of the written contract upon which the suit is based. Upon this supposition the complainants had the right to suggest in their bill such anticipated defence, and to aver the existence of circumstances within the knowledge of the defendant, which were calculated to overthrow it. It is always to be remembered that a bill in equity has a two-fold purpose. The first is to bring before the court and to put in issue the facts upon which the complainants right to relief rests; thus far the bill is equivalent to a declaration in an action in the common law courts; but it is likewise an examination of |