By the Court.
C. E. Elandrau. J.This case was tried before a Referee and a report made for the Plaintiff. The evidence on the part of the Plaintiff on the trial before the Referee, were the depositions of H. M. Rice and R. P. Bruce, two witnesses whose depositions had been taken by stipulation before the Referee before the trial, on the ground that the one ivas about to depart from the Territory, and the other resided at a distance from the place where the cause was to be tried. *121Afterwards an order was made in the case by tbe Judge of tbe District Court, setting aside the report of the Referee and granting a new trial. Tbe counsel for tbe Plaintiff finding that the same difficulty existed in procuring tbe testimony of witnesses Bruce and Rice, which bad induced him to take their depositions previous to tbe first trials, and supposing that tbe depositions could not be used on a subsequent trial, applied to tbe Court on motion, to have tbe order which granted tbe new trial, so modified as to permit him to use said depositions on tbe trial of tbe cause; tbe Court granted tbe motion and allowed tbe order asked for, and from such order ¡Defendant appealed to this Court.
Tbe counsel for tbe Plaintiff moves to dismiss tbe appeal on tbe ground that tbe order is not an appealable one.
Appeals may be taken to tbe Supreme Court from orders in tbe following cases:
2. “Prom an order granting or refusing a provisional remedy, or which grants, refuses or dissolves an injunction.”
3. “ From an order involving tbe merits of tbe action,, or some part thereof. ”
4. “ Prom an order granting or refusing a new trial. ”
5. “Prom.an order which in effect determines tbe action, and prevents a judgment from which an appeal might be taken. ”
6. “ Prom a final order affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment. ”
R. S. p. 414, Sec. 11, as amend. by Law of 1856, p. 12, Sec. 18.
If tbe order falls within any of tbe subdivisions, it must be No. 8, above set out, and tbe only reason which admits of a possibility of its being covered by that clause, is tbe indefinite nature of its extent and operation. We are not without authority however on this point. Tbe same words are used in tbe New York Statute, and have received a full examination and judicial interpretation in the- Courts of that State. In St. John vs. West, 4 How. Pr. R. 329, Justice Selden describes at large tbe meaning of tbe words “ involve tbe merits, ” and holds that they should be taken to mean in this connection, “ tbe strict legal rights of tbe parties as contradistinguished *122from those mere questions of practice which every Court regulates for itself, and from all matters which depend upon the discretion or favor of the Court.” The Court in that case held that an order denying a motion to substitute certain parties for one of the Plaintiffs who had died since the commencement of the action, did not involve the merits, and was not appealable.
The construction given to these words by Justice Selden in St. John vs. West, was approved at the General Term of the Superior Court of New York, in Megrath vs. Wyck, 3 Sandf. S. C. R. 750. See also Cruger vs. Douglass, 2 C. R. 123. 8 Barb. S. C. R. 81. Bedell vs. Stickles, 4 How. Pr. R. 432. Whitney vs. Wateman, 4 How, Pr. R. 313. These cases although dissimilar in the matter decided, with the one under discussion, aid in giving a correct signification to the words “involve the merits.” Test the order by this rule, and it cannot be said to involve the merits. The new trial' had been granted solely on the ground that the Referee had reported without the Defendant having put in any evidence, and it was for the purpose of allowing them to prove their defence if they had any, that the case was opened, and not from any error connected with the admission of the evidence offered by the Plaintiff, and was evidently granted as a favor to the Defendants, as payment of the costs of the motion were imposed upon them as the terms of granting the order.
There can be no doubt that in the original order [granting the new trial, the Court could have imposed as a condition of opening up the case, that the evidence on the part of the Plaintiff or any part of it taken on the first trial, should be considered on the second: such is the every day practice of the Courts, when reasons exist for so doing. A witness may have died, or left the country, or become insane since the first trial, any of which cases have been considered sufficient to make orders conditional upon the reception of the testimony of such witness on a subsequent trial of the same case. The Counsel for the Plaintiff cites several cases in support of this rule, but the case in 1 Chitty R. 425, is so exactly in point and from such high authority, that it should put the power beyond *123doubt; tbe exercise of it however was discretionary and cannot be reviewed. ■
Tbe order is not appealable because it is inoperative. Tbe depositions were taken by stipulation to be used in tbe trial of tbe cause, and could bave been so read without tbe order of tbe Court.
Tbe Revised Statutes place tbe right of tbe Plaintiff to read tbe ■ depositions beyond all doubt, R. S. page 474, Sec. 21. “ When tbe Plaintiff in any suit shall discontinue it, or tbe suit shall be dismissed for any cause, and another suit shall afterwards be commenced for tbe same cause between tbe same parties or their respective representatives, all depositions lawfully'taken for tbe first, may be used in tbe second,” &c. &c. Sec. 22 provides that they may be used on appeal in tbe same suit.
Section 23 authorizes tbe Court to make rules among other things for tbe manner of ‘’taking and using” depositions, &c. Had tbe Court made no order concerning tbe depositions at all, we think tbe Plaintiff could bave used them as well as now. 3 Greenleaf, Ev. Sec. 326.
Tbe appeal should be dismissed with ten dollars costs of tbe motion.