dissenting.
It appears, from the record in this cause, that complainants, P. Chouteau, Jr. and others, in the month of October, 1849, filed their original bill in the District Court, at Stillwater, against ITenry M. Pice and others, charging that said Pice and others, had entered into partnership with complainants for the purpose of trading with certain Indian tribes in Minnesota. That complainants furnished a large amount of goods, money, &c. for such trade, a portion of which was still in the possession of Pice. That Chouteau resided in the city of St. Louis, Mo. That Pice assumed the management of the business at St. Paul, and was charged with its conduct in accordance with certain articles of partnership, which are made a part of complainant’s bill. That Pice, departing from, and disregarding said articles of partnership, fraudulently diverted the capital so furnished by complainants, from its legitimate object — embarked in wild and visionary speculations in lands, town lots, buildings, &c. &c. — that by this conduct on the part of Pice, complainants had sustained a loss of $30,000.
They pray that Pice and others, with whom they allege he has combined and confederated for the purpose of defrauding them, be made parties defendants to this bill — that Pice be enjoined from the further management of the affairs of the firm — that he and his confederates be restrained from conveying or disposing of such property of the firm as he may have in his possession, or that held in his own right — that an account be taken and the partnership dissolved — upon which an *30injunction issued. Tbe bill was subsequently taken pro confesso; after which, and at the October term, 1850, Nice and others pleaded a settlement and release of all matters in controversy of a date subsequent to tbe filing of complainants’ bill — and, by counsel, moved tbe Court that tbe injunction be dissolved and tbe bill dismissed. The cause was continued for advisement, and on tbe 1st of July, 1851, tbe opinion of tbe Court was filed.
The pro confesso was set aside on tbe 12th of February, 1851. On tbe 3rd of March, 1851, respondents pleaded said settlement and release more formally.
At tbe May term of said Court, 1851, and previous to any further steps having been taken in tbe cause, complainants exhibited to tbe Court their supplemental bill against respondents; charging that said settlement and release, set up by respondents in said plea, bad been obtained by and through tbe false and fraudulent conduct and misrepresentations of Nice; and by petition and affidavit, moved tbe Court that tbe same be filed and made part of tbe original bill.
This motion was beard by tbe Court. Subsequent to which, and on tbe 26th day of May, 1851, tbe following order was made in tbe cause :—
“This cause came on to be beard on an ex pa/rte application, on tbe part of tbe complainants to file a supplemental bill — a plea having been pleaded and a motion filed on tbe part of defendants, to dissolve tbe injunction bad in said case enjoining said defendants ; and tbe application having been argued by counsel, it is hereby ordered that tbe plea pleaded be allowed. And it is further ordered that tbe injunction in this case be dissolved. And it is further ordered that "the supplemental bill be filed of record in this case, and that tbe prayer of said complainants for a subpoena be granted.”
“ And it is further ordered that said subpoena be issued accordingly, and made returnable on tbe 25th of June, 1851.”
“ And it is further ordered that tbe said defendants plead or answer to tbe said supplemental bill, filed as tbe same may require, or demur thereto, within twenty days after tbe return of. tbe subpoena ordered and allowed — and that, in default of so doing, tbe said bill and supplement be taken as confessed.”
*31By which, complainants’ rights seem to have been placed in jeopardy, and from w'hich order they appealed to this Court.
And respondents move this Court to dismiss said appeal:—
1st. Because the decree appealed from is interlocutory and not final.
2d. Because the dissolution of an injunction rests entirely in the discretion of the Judges, and cannot properly be made the subject of appeal.
And this motion is sustained by a majority of this Court, and from which opinion I feel constrained to dissent.
In the disposition of this question we are bound by no precedent of our own.
The injunction in this case was the first ever granted in this Territory; therefore, the investigation and disposition of this question must turn upon its own peculiar merits, governed by the established usages of Courts of Chancery.
Congress has clothed the members of this Court with all the equity powers of the English Court of Chancery. The equity jurisdiction of the Courts of the United States, is independent of the local law of any State, and is the same in nature and extent, as the equity jurisdiction of England, from which it is ■derived. See 2 Sumner, C. C. R. 401.
The 9th section of the Organic Act, provides, that “ the appellate jurisdiction of the Supreme Court, shall be as limited by law.” By what law ? By such laws as govern the English Court of Chancery, and as may be rightfully enacted by the local legislature.
By said Act it is provided that Writs of Error, Bills of Exception and Appeals shall be allowed in all cases from the final decisions of said District Courts to the Supreme Court, under such regulations as may be prescribed by law.
In the above cases of final decrees, &c., appeals, &c., shall be allowed. In what other cases may not appeals be allowed? In all cases where jusince shall regui/re them. Would an appeal lie from an order, similar to the one made in this cause, in the English Court of Chancery ? I am clearly of opinion that it would.
By the Laws of Minnesota, page 64, Sec. 54, it is enacted, that “ any party may appeal from cm/ decree or ord&r of the *32Court of Chancery, to the Supreme Court. Provided, that •within thirty days after the rendition of such order or decree, he shall serve notice of such intended appeal upon the opposite party or his solicitor — one on the clerk of the court where such decree or order was made.and entered.”
It appears from the record that complainants have done all that can be required of them under the statute to entitle them to the benefits of an appeal. . .
Our Territorial Legislature was not restrained by the Organic Act, from permitting appeals from orders and decrees not final. Courts of Chancery have always held this power, and will continue to exercise it on all proper occasions. And it is the duty of such courts to allow and sustañn appeals from any and all interlocutory orders and decrees prejudicial to the rights of either party independent of any legislative aid upon the subject. Courts of Chancery have been established for the purpose of preventing fraud, and.of affording relief against it, not for the infliction of injuries. I find this question clearly settled in the case of Beach vs. Fulton Bank. 2 Wend. 226. Here the Chancellor denied an application, made by appellants, to open the proofs taken in a cause in which the respondents were complainants, and the appellants were defendants, for the purpose of re-examining a witness produced on the part of the respondents. The motion was denied with costs. It appeared, that since the examination of the witness in Chancery, he had been called to testify in a cause tried in the Superior Court of the city of New York, and on that occasion, disclosed facts which the appellants alleged were material and pertinent to their defence in the cause depending in Chancery, and which the witness had not disclosed on his examination in Chancery. From this order, the .defendants appealed, and a motion was made, as in the present case, to dismiss the appeal.
After a thorough examination of the siibject, the Court vna/nimousVy denied the motion.
If it shall be contended that the Legislature has not the power to authorize the granting of appeals from orders not final, most certainly this Court has, and will exercise that right.
Suppose an order to be entered in the District Court, inja *33cause which must be decisive of the rights of the parties, and which may work serious injury to one of them. Shall he not be allowed an appeal to this Court, where such order may be examined ?
Most certainly he shall.
It is contended, that the order made in this case dissolving the injunction, was made in the exercise of discretionary power, and that therefore an appeal does not lie. The same ground was taken in support of the motion to dismiss the appeal in the case of Beach vs. Fulton Bank, above referred to, and to which case I shall make frequent reference, and from, the opinion of the Court therein delivered, many extracts.
If, by discretion, is meant arbitrary power, I contend that it does not belong to this Court. It would involve the essence of tyranny.
That discretion which pertains to a Court of Chancery, is a sound legal discretion, regulated by the principles of enlightened equity, and it is legitimate for this Court, sitting as a Court of Appeal, to review amry order made in the exercise of such discretion. Why should the exercise of discretion not be examined as well as the making of a final decree?
The Chancellor has no other guide in the making these orders, than an enlightened conscience, regulated by the settled principles of equity.
A discretion, exercised contrary to such principles, will nofr be recognized by this Court. Had the Court below refused to set aside the pro confesso heretofore taken in this cause, upon the application of respondents, founded upon an affidavit setting up a meritorious defence, Bice would, like complainants, have been forced to an appeal or the abandonment of his. suit.
Submission on his part, to such an order, or refusal, would have been conclusive of his rights. But suppose he did appeal, and this Court should have held, as in the present case, that the order was interlocutory and not final, or that such refusal or order was made in the exercise of discretionary power, and could not, consequently, be made the subject. of appeal. In this event, respondents would have been where complainants- appear to be — at the mercy of their adversaries, in so far *34•as the subject matter of this suit is concerned, and without relief ; a result utterly at war with the pure and enlightened «principles which have continued to govern the action of Chancellors in England and America for centuries past.
The real case of complainants,' and the supposed case of respondents appear to me to be in direct oj3position to the well established usages of Courts of Chancery, and if carried out, must amount to a denial of justice to the parties.
If this appeal be dismissed on the ground that the retention of it might establish a practice burdensome to the Court, I must be permitted to remark that we are not likely to be greatly oppressed by appeals from questionable orders. A thorough examination of the history of Courts of Chancery, on both sides of the Atlantic, will warrant the assertion that this Court will never be burdened by appeals from doubtful orders or decrees.
In the case referred to, in 2 Wend. 225, Mr. Justice Spencer said he was against dismissing the appeal; and he disposed of the question as to the order being one from which an appeal would not lie, by the general declaration, that the right was given by statute, and when the appeal was interposed, the order from which it was brought was an existing one. In 4th Johnson's Reports, 510, the Supreme Court of New York decided, that an appeal lies from an order of the Court of Chancery refusing to dissolve an injunction, and decreeing costs against the defendants.
Mr. Chancellor Kent, in his opinion in the case of Beach vs. Milton Bank, says :—
“ The same question, as to the distinction between orders from which appeals would or would not lie, that had arisen in the preceding cases, and which the Court had declined to decide any further than became strictly necessary for the disposition of the cause before them, met them again in] this case, ■and found them as unprepared, and as much embarrassed with the difficulties attending it, as they had been on any former occasion.”
The learned Judge, when he delivered the opinion of the ■Court, expressly declined drawing the line of distinction. He -merely decides that the refusal to dissolve an injunction, di*35recting it to be retained and awarding costs to be paid by tbe party making the application, is an order within tbe terms of tbe statute. That in tbe case of Buel vs. Street, Spencer J., declared, tbat an appeal would lie where tbe order affected tbe rights of tbe parties or imposed a grievance, and not on a mere practical order.
In the case of Train vs. Waters, where this question came ■again under consideration, Platt, J., observed, tbat be was not prepared to say tbat an appeal would not lie in any case for .costs only. Spencer, J., intimates an opinion, tbat an appeal would lie in such a case under our statute.
I will here remark, tbat tbe Statute of New York, allowing .appeals from orders, &c., in Chancery, is not so broad as tbe Statute regulating such appeals in Minnesota. See 2 Wend. 234.
Kent, G. J., continues to remark as follows :—
“ I believe I have allowed to most, if not all, of tbe cases wherein tbe Court have bad occasion to consider tbe distinction between orders, with regard to tbe question, whether appeals may or may not be brought on them, and I have attempted to draw from them a general rule to mark tbe two classes; but I must, confess, tbat I have closed tbe examination of them with tbe ■same conviction which others have expressed — tbat it is exceedingly difficult, if not impracticable, to arrive at any, satisfactory result.
“ Each case, it seems to me, has been decided in a great degree-with reference to its own characteristics, and without regard to tbe application of any principle classifying these orders. If this Court shall now attempt to extract from tbe various positions laid down in these cases, a general rule for tbe government of their proceedings, it is a matter of duty tbat they should not forget tbat they are fixing limits to a highly prized and valuable right; and tbat an unnecessary restriction upon its exercise may, and most probably would, interfere in an essential manner with tbe administration of justice.
“ On tbe argument of tbe rule laid down by tbe Chancellor in the case of Closen vs. Shotwell, relative to Writs of Error, and much urged upon our consideration, there is an evident distinction between Writs of Error and Appeals. If it had not been long established by unquestionable authority, the *36Court would at once see tlie necessity of recognizing it. The discretionary powers confided to the Courts of Common Law, are few and unimportant, compared with the immense mass of" them which surrounds, and perhaps I might say, constitutes the very being of a Court of Equity.
“ The power of issuing injunctions and attachments is, so to speak, the right arm of the Court of Chancery, and the exercise of it in ahnost every instance, is conceded to be a matter existing in discretion.
“ To put every act of this power, be its consequences to par- . ties ever so serious, entirely beyond a review by the court of the last resort, would, in many instances, be a denial of justice, and the surrender of a long used and necessary portion of the jurisdiction of this Court.
“ In the case of Taylor vs. Delancy, presenting as nearly as any one could, the abstract question of the exercise of discretionary power, it was strongly intimated, that this Court would interfere and relieve where the discretion had been exercised in an unjust manner.
“ In the case of a temporary injunction to stay the party from proceeding to trial at law, one of the ablest Judges that ever had 'a seat in this court, was in favor of sustaining the appeal from the order granting it. The question, whether an appeal would or would not lie on an order dissolving or refusing to dissolve an injunction — a matter certainly resting as much in discretion as any that can come before the Chancellor — has been twice raised here. In the one case, the Court declined the question, and in the other, it decided that an appeal would lie on an order refusing to dissolve an injunction, and allowing costs for resisting the application. It is a familiar principle, that questions of costs are confined to the discretion of the Chancellor; yet it has been decisively intimated, that an appeal would be sustained here on an order relating solely to costs. Enough has been shown, it appears to mo, without going more at large into this matter, to satisfy us that if we should adopt the broad rule, that no’ appeal can be entertained here,, from an order made by the Court of Chancery, in the exercise of its discretionary powers, we should come in conflict with .several of the former decisions of this Court, and depart from the *37settled construction of the statute seeming the right of appeal.
“ Being unable to dispose of the motion before us by applying to it any general rule, it becomes necessary to consider the general character of the order on which the appeal is brought; and the object of the application denied by the Court below, so far, at least, as to determine whether this Court ought to sustain the appeal. ¥e ought not to send the appellants out of Court unheard on the merits of their appeal, without being fully satisfied that they could have no relief here. In case they should show their situation to be such as they represent it, we are then, for the purpose of deciding this motion, to assume that the witness, in order to whose reexamination the defendants applied to the Chancellor to have the proofs opened, had been cross-examined in a proper manner to draw out the facts which they now wish to prove by him ; that since publication passed in the cause below, he has -disclosed under oath, in a suit .at law, facts which he did not ■disclose on his examination in Chancery, material and pertinent to the defence of the appellants; and that a seasonable application was made for his further examination. This is the ■case that the appellants declare they shall present to us on the appeal, and until we investigate its merits, we cannot say that It is not what they represent it to be.
“ I cannot doubt, that an order refusing sueli an application would be a decision affecting the merits of the cause in which it should be made, and a matter of serious grievance to the party against whom it might be entered; If such a case exists, why shall not the aggrieved party find relief in this Court ?
“ Not merely because the granting or refusing of the appli■cation to the Court below was confided to its discretion; because we have seen that this Court, in repeated instances, has refused to restrict itself by this consideration, and in several cases has sustained appeals on orders emanating from the discretionary powers of the Courts in which they were made.
“Was the application, below to the favor of the Court? This is denied by the appellant, and On the assumption which this motion requires us to make, may well be denied.
“ I regard it as a matter of right, that a party shall have •the full benefit of any defence he may have in,a Court of Equity, *38•which he has not waived by his acts or forfeited by his negligence ; and if, from the peculiar circumstances of the case, the rules of proceeding adopted for ordinary cases, stand in the way of making such defence, the party, I think, may claim of the-Court, that it should conform its proceedings to the peculiar-circumstances of the case. I do not, I am confident, undervalue the importance of having established modes of proceeding in all Courts of Law and Equity, and of enforcing-observance of them; but to withhold right by an undue-regard to the forms by which it is obtained in common, cases, is making the end subservient to the means, and. would seem to be, in a Court of Equity, a renunciation of one-of the acknowledged objects of its original institution — that of qualifying and tempering the rigor and sharpness of the common law in special cases, and of supplying that which is unintentionally harsh in the application of a general rule to a particular case.
“ I am, therefore, for denying this motion, and hearing the appeal on its merits.”
“ Sutherland, J. Where the party is aggrieved or may be aggrieved by an order made in Chancery, he has the right to appeal. To deny the right, where the order is founded upon the exercise of the discretionary powers of the Court, would be to abrogate appeals in most cases of interlocutory orders. He was of opinion that the appeal should be heard, and that the motion of the respondents ought to be denied.”
“ Whereupon the motion was nmanwnously denied.”
I feel confident, that the Court, in the above case, clearly defined the duty of Appellate Courts in all cases of appeals from orders and decrees not final; and I much regret that this Court has, at the commencement of its judicial duties, departed so widely from the course laid down by the mighty intellects engaged in the investigation of the case above referred to. In proceedings in Chancery, let us adhere to long established usages. “ Iiemove not the ancient land marks which thy forefathers have set.”
The Supplemental Bill, like the original, charges framd m the most joositme terms. With these charges resting upon re*39spondents, it was clearly erroneous to dissolve the injunction.
I am of opinion that this motion should be denied, and the appeal heard upon its merits.