32 N.J.L. 499 | N.J. | 1866
The opinion of the court was delivered by
It was conceded on the argument of this motion, by the counsel of the respective parties, that unless the decision of the court below was final in its character, a writ of error to remove it for review into this court would not lie. But the ground was taken, in behalf of the plaintiff in error, that the legislature, by various statutes, and by an organized method of proceeding, had authorized the trial, upon testimony of the question of the alleged fraud of the defendant, and that this question was definitively settled in the present case, by the refusal of the court to discharge on common bail.
This position, we think, is not tenable. The order thus made was clearly not final, in the sense of that term, as applicable to that class of judgments which are removable by writs of error. It is true that the action of the court Avas, for the time being, final upon the question of the fraudulent conduct of the party. But in the same sense, and to the same extent, are all interlocutory orders or awards of the court. They all conclude, for the time, the matters to Avhioh they appertain. Thus, the refusal to quash a summons for an alleged defect in the service — an order to strike out a plea or a count in a declaration,, and all determinations of a similar character, are final and conclusive on the parties during the progress of the cause, and until it attains its
Nor does it appear that, in modern times, there has been any relaxation of the stringency of this rule. Barkley v. Warwick, Cro. Elk. 635; Samuel v. Judin, 6 East 333; Finch v. Renew, 3 Salk. 145; Tolson v. Kaye, 6 Man. & Gran. 589 ; Herbert v. Sayer, 5 Adol. & El. (N. S.) 981, note a. And in the case of The State v. Wood, 3 Zab. 560, in this court, the doctrine was not only recognized, but acted upon. The result, therefore, is, that it must be considered as the settled rule of practice that a judgment, or an order, or award in the nature of a judgment, to be removable by writ of error, must be final in the suit, not as to an intermediate or incidental particular, but with regard to the principal matter in controversy in the action. And it is believed that the practice of this court has always been in exact accordance with this rule, and that all the cases over which cognizance has been taken can be embraced within its limits. Thus, falling within this classification, were the decisions of the Supreme Court on the following subjects, viz.: an order to set aside the proceedings of an election, fixing
Tested by this criterion, then, it is clear that the decision complained of in this case, was not a final order or judgment. It was simply an incidental order, regulating, in one respect, the form of proceeding. It did not differ, in kind, from the ordinary order to hold to bail, or a refusal to discharge on common bail, in an action of tort. It is true that the legislature has required, in actions founded on contract, that the order for bail shall be based on the proof of facts, which it was not formerly necessary to prove to warrant judicial 'action. But the character, or the amount of the evidence requisite, cannot alter the substantial nature of the proceeding. It is still an order for bail, and nothing more. It certainly should require a clear manifestation of a legislative intent to introduce the innovation, before this court should be called upon to so depart from its settled practice as to permit a suit at law, in its initial stage, to be arrested and brought here for review. The principal, if not the only, argument in favor of such a proposition was, that as the liberty of the citizen was a constitutional right of pre-eminent importance, it was not to be conceived that it was the design to subject such right, ultimately to the determination of any
From these, among other considerations, it is not conceived that it was the design of the law-makers to innovate upon the established practice of this court, in the particular just discussed, and as the writ of error in this case is not in conformity with such practice, it should be dismissed, with costs.
For dismissal — Beasley, C. J., Cornelison, Dalrimple, Elmer, Fort, Kennedy, Belle, Vail, Vrebenburgh, Wales, Woodhull. 11.
Contra — None.
See 2 Vroom 490.