*Peter Brooks, Jun., plaintiff in error, against Abijah Hunt, defendant in error.
A writ of error <⅛« of the onPran<motion made to set a-¡)⅛ an exocu
But even if error would lie to such a case, yet if the plaintiff in error has applied for and obtained a writ of audita querela, it is a waiver of his right to bring a writ, of error; for audita querela, is a reguiar suit, in winch the parties may pleat! and take issue on the .merits j and upon the judgment of the Supreme Court thereon, a writ of error mav be brought to this court.
IN ERROR to the Supreme Court. Hunt recovered a judg-inent against Brooks in the Supreme Court, in an action of'cov-enaut, for 4,773 dollars and 46 cents. The record was filed arid judgment docketed the 29th of August, 1804. A test.fi. fa. was issued to the sheriff of Montgomery county, who collected of thc goods and chattels of the defendant, 64 dollars and 76 cents. *380In 1805, a ca. sa. was issued for the residue, on which the defendant was taken and imprisoned from that time until June, 1808, when he was discharged from imprisonment, by the Court of C. P. of M, under the “ act for the relief of debtors with respect to the imprisonment of their persons,''’ passed the 24th of March, 1801, (sess. 24. ch, 66. s. 4, 5. 7.) and the “act for giving relief in cases of insolvency, for the bailing of prisoners, and for other purposes,” passed the 8th of April, 1808, (sess. 31. ch. 163. s. 7,8, and vid. 1 N. R. L. 348. 2 Rev. Stat. 16, &c.) which provided that a debtor so discharged should not, afterwards, be arrested or imprisoned for the same debt, but “ the judgment should remain in force, and execution might, at any time, be taken out thereon against the goods and chattels, lands and tenements, of such debtors, (necessary wearing apparel and bedding for him and his family, and the tools of his trade, excepted,) as if he had never before been charged in execution and released from prison.” All the real and personal property of B. was assigned, by order of the Court of C. P. to Henry F. Yates, for the Use of the plaintiff, &c. On the 2d oí December, 1811, B. being impleaded in certain suits, within the meaning of the “ act for the benefit of insolvent debtors and their creditors,” passed the 3d oí April, 1811, (sess, 34. ch. 123.) presented his petition to the first judge of Montgomery county, pursuant to the act, and having complied with all things required by the act, was, on the 7th of February, 1312, by a certificate under the *haud and seal of the judge, discharged from all his debts. On the 1st of March, 1819, Hunt caused an alias test. ft. fa. to be issued against the property of Brooks, founded on the former judgment, and on the provisions contained in the acts of 1801 and 1808, as above stated.
In the last May term, Brooks moved the Supreme Court to set aside the alias test. fi. fa. on the ground of his discharge from all his debts, under the act of 3d of April, 1811. The S. C., after taking time to advise until August term last, denied the motion, with costs, (vide Mather v. Bush, 16 Johns. Rep. 233—256. Roosevelt v. Cebra, ante, p. 108.) on the ground that the case could not be distinguished from that of Sturges v. Crowninshicld, (4 Wheat. Rep. 122.) in which the Supreme Court of the United States decided that the act of the 3d of April, 1811, so far as it discharged the debtor from all liability for previous debts, was an act impairing the obligation of contracts, within the meaning of the constitution of the United States, and, therefore, void.
In October term last, Brooks again moved to set aside the alias test fit. fa., and for leave to issue an audita querela. The court below granted the motion for the audita querela, but said that it should not operate as a supersedeas to the execution.
On the denial of the motion in August term, Brooks caused a record to be made up and signed and filed in the Supreme Court, which contained the notice of the motion *381made in May term to set aside the execution, and the affidavits on which it was founded and resisted, and the order of the court thereon; and upon that record brought a writ of error to this court. On filing the return to the writ of error, the defendant in error alleged diminution, and obtained a certiorari, to which was returned copies of the notice, affidavits, &,c., on a motion for the amendment of the execution, which had been granted in August term, on payment of costs.
The chief justice having assigned the reasons for the order of the court below,
Henry, for the defendant
in error, moved to quash the writ of error, on the ground that a writ of error would not lie on such an interlocutory proceeding or order of the *Supreme Court, on a special motion; and, also, that the plaintiff in error, by applying for his remedy by audita querela, had waived his right to a writ of error, admitting even that he was entitled to it.
The court said, they would reserve the question on this motion, and directed the counsel to proceed and argue the cause, in connection with it, on the merits of the case, as they appeared on the record.
As the court decided that the writ of error should be quashed, it is unnecessary to state the arguments of counsel, on the merits.
Oakley, (Attorney General,) and S. Jones, jun., for the plaintiff in error,
cited Clason v. Shotwell, (12 Johns. Rep. 31.) to show that a writ of error would lie in this case.
Henry, in reply,
said, that this being a mere interlocutory order or proceeding, came within the very distinction taken and adopted by this court, in the case of Clason v. Shotwell, between a final determination of a cause on its merits, and an interlocutory order of the court.
The Chancellor.
There are two points raised upon the preliminary motion to quash the writ of error : 1. Will a writ of error lie in this case? 2, Assuming it to lie, has not the plaintiff in error. Brooks, waived that remedy, by subsequently applying to the Supreme Court for leave to sue out an audita querida. ?
1. I am of opinion, upon the first point, that the writ of error ought to be quashed. The rule or order of the Supreme Court, denying Brooks’s motion, was not a judgment, within the meaning of the constitution, or of the statute organizing this court. It was only a decision upon a collateral or interlocutory point, and cannot well be distinguished from a *382variety of other special motions and orders which are made in ^le Progresss óf a suit, and which have never been deemed the foundation of a writ of error. A writ of error, according to the uniform language and understanding of the law, will lie only upon a final judgment or determination #of a cause, and it never was known to lie upon a motion to set aside process.
2. But if error could be brought upon such a motion, the plaintiff in error has waived all right to it in this instance, by his subsequent application to the Supreme Court for an audita querela. That writ lias been granted to him, and it is a regular suit, in which the plaintiff in error can set up his discharge, under the insolvent act of 1811, in bar of the execution. The parties can plead and take issue either in law or fact, upon the merits and legality of the discharge; and a regular judgment must be pronounced in the Supreme Court, upon which error can be brought into this court, and from here into the Supreme Court of the United States, if the case should require it. I cannot conceive of a more decided case of a waiver of the first motion, and of the rule of the Supreme Court upon it, than this renewed application to the same court for the writ of au-dita querela. It is not an uncommon thing for a court of law, if the case be difficult or dubious, to refuse to relieve a party after judgment and execution in a summary way by motion, and to put him to his audita querela. Cases to this effect were stated by Lord Holt; and the Supreme Court, in 1801, in the case of Wardell v. Eden, (cited in 1 Johnson’s Rep. 531, note,) adopted this course. And surely, after the decision of the Supreme Court of the United, States, the Supreme Court acted with great discretion in denying relief to Brooks upon motion, and afterwards granting him, as a matter of right, his writ of audita q uerela. If ever the case touching the right of Hunt to his execution, notwithstanding Brooks’s discharge under the act of 1814, is to be carried up from this court to the Supreme Court of the United States, I should hope, for the credit of our practice, it might be on the audita (querela, and not upon such a strange mode of proceeding as that of a writ of error brought upon a motion and affidavit.
The rest of the court (Hammond and M’Mabtin, Senators, dissenting) being of the same opinion, it was, therefore, ordered and adjudged, that the writ of error in this cause be quashed, &c.
Writ quashed.