Opinion
(June Term, 1858.)
An order of the County Court permitting a creditor, not notified, to make up an issue of fraud in a proceeding under the insolvent debtor's act, a refusal to treat certain specifications of fraud, suggested by the plaintiff, as nullities on account of vagueness, and because not filed in time, and an order to continue the cause, can, neither of them, nor altogether, be appealed from; because a decision of them, in an way, would not put an end to the cause.
Motion to discharge a debtor from custody, under the act for the relief of insolvents, heard before MANLY, J., at the last Spring Term of Cumberland Superior Court.
Banks and Haughton, for the plaintiffs.
Kelly and Fuller, for the defendant.
A ca. sa. had issued from a justice of the peace against the defendant, and a bond taken returnable to March Term, 1855, of the County Court. The defendant filed a schedule, which on monday of the term, he proposed to swear to, but the plaintiff, in the ca. sa., asked for, and obtained time, till friday of the term, to make up an issue of fraud and file specifications. On that day, the plaintiff gave notice that he declined to make up such issue, whereupon Cook and Johnson asked, and obtained leave, to make up the issue of fraud, and they filed specifications, suggesting that the defendant had concealed property, money and effects, in various instances and particulars. The new plaintiffs then filed an affidavit, upon which, the cause was ordered to be continued till the next term of Court.
These several motions were opposed by the defendant, who filed a statement, in writing, specifying the grounds of his opposition, to wit:
"1. That the specifications, or what purports to be such, are mere suggestions, and not specifications.
"2. That what purports to be specifications of fraud, is but an affidavit of John H. Cook, suggesting fraud.
"3. That if there be any suggestions of fraud, they have not the written affidavit of any one annexed, setting forth, that he verily believes them to be true.
"4. For that such suggestions or specifications, are not sufficiently explicit.
"5. For that in point of fact, no issue is made up, and until that is done, the Court cannot continue the cause."
The exceptions thus drawn up were overruled by the Court, and the defendant appealed to the Superior Court.
Upon motion, in the Superior Court, the defendant's appeal was ordered to be dismissed, upon the ground, that it had been improvidently allowed. Whereupon, the defendant appealed to this Court.
The several orders of the County Court, from which the defendant appealed to the Superior Court, were of such a character, that not one of them presented a question, upon which a judgment against the plaintiffs, could put an end to the cause. If such had been the case, and the defendant had a right to such a judgment, which the Court refused to give, he might have appealed at once to the Superior Court. Although it is admitted, that it is not every order which the county court may make in the progress of a cause, that is, the subject of an appeal, yet, as TAYLOR, C. J., said in Hunt v. Crowell, 2 Murph. Rep. 424, "Whenever the question presented to the county court, is such, that a judgment presented to it one way, would put an end to the cause, it may be appealed from." This rule was adopted as the true test in the case of Mastin v. Porter, 10 Ire. Rep. 1, and according to it the appeal, in the present case, was improperly taken, and, therefore, was rightfully dismissed from the Superior Court. The making suggestions of fraud by creditors, under the insolvent debtors' act, Rev. Code, ch. 59, and the ordering of issues to be made up thereupon, to be tried by a jury, are matters proper for the County Court, and the defendant cannot be entitled to any judgment in reference to them, which would put an end to the cause, and it follows, that any appeal by him, from such, would be premature. Such were the orders in this case, with the additional one, for the continuance of the cause, and a judgment upon neither could have been final.
The order of the Superior Court dismissing the appeal is affirmed, and this opinion will be certified to the Superior Court, to the end that the appeal to that court may be dismissed, and that a writ of procedendo may issue to the County Court, directing it to proceed in the cause according to law.
PER CURIAM, Judgment affirmed.