In re Negus

10 Wend. 34

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: December 15, 1832
• Status: Published

Opinions

The following opinions were delivered :

By the Chancellor.

The general rule is that a writ af-

errar will lie only on a final judgment or an award in the nature of a judgment given in a court of record, acting according to the course of the common law. There are a great variety of cases where error will not lie on adjudications affecting the rights of parties. In England it is still an open question whether a writ of error will lie on the refusal to grant a habeas torpus, although upon the decision made when the prisoner is brought up, it does lie. In the case of Yates v. The People, this court did hold that a party was entitled to a writ of error on the refusal to allow a habeas corpus. So a writ of error will not lie on the denial of a mandamus or prohibition, but upon the judgment rendered in such cases error lies, since the statute of Jinn, although previous thereto it could not be sued out. In England also, in the case of awards, which is in some measure an analogous proceeding, error will not lie ; nor will it lie on a refusal to set aside an annuity. In England, it is well settled that error does not lie when the court acts in a summary manner, or in a new course different from the common law. The revised statutes to which we have been referred, declaring writs of error to be writs of right as well upon a determination as upon a final judgment in all civil cases, 2 R. S. 591, § 1, probably refer to determinations upon awards and canal appraisements, in which a writ of error is provided by statute. In the present case a writ of error does not lie. Previous to the revised statutes, there was no appeal from the decision of trustees under the absconding debtor act. Now an appeal is given to the supreme court; but there is no intimation in the statute that the determination of that court should be subject to review, except in the case specified in the statute of a petition to discharge the warrant issued against the debtor, 2 R. S. 602, § 67, and a writ of error being given in that case, the legal inference is that it was not intended to be extended to any other. I am therefore of opinion that the writ of error ought to be dismissed.