#### Hunt *v.*Crowell.

1- From Nash.

*It*seems-that an appeal may be taken from an interlocutory order of the County Court granting leave to *amend;*and that on confirming the judgment of the County Court, a *procedendo*will issue from the Superior Court.

This was a suit commenced before a Justice of the Peace and came to the County Court by appeal. In the County Court the Defendant pleaded in abatement that the warrant was not made returnable within thirty days, Sundays *excepted;*whereupon Plaintiff moved for leave to amend by inserting in the warrant, the words, *“*within thirty days, Sundays excepted,” which was granted by the Court.

The Defendant thereupon, appealed to the Superior Court, where the Plaintiff objected that the appeal was improperly taken in a matter from the decision of which no appeal would lie.

The case was referred to this Court, to shy, whether the appeal was properly taken and could be sustained, or whether the Superior Court had no jurisdiction of the cause ? And if the cause be remanded to the County Court, whether any, and what judgment shall be rendered in the Superior Court ?

Tayior Chief-Justice.

I am of opinion that the County Court did right in allowing the amendment of the *425warrant, and that the judgment thus pronounced by tliem was so closely connected with a final determination of the suit, that it is quite within the equity and meaning of the act of *1777,*the subject of appeal by the party dissatisfied. It would be perhaps impossible to draw the line, in the abstract, between those orders made by the Court which may be appealed from, and those which *cannot;*and it would probably be safer to decide upon each case as it arises, if I were to lay down a general rule, it would be, that wherever the question presented to the County Court is such, that a judgment upon it one way, would put an end to the cause, it may be appealed from *;*but where the Court cannot give such a judgment upon it as would decide the cause, or directly affect its decision, it cannot be appealed from. If the County Court had disallowed the amendment, the warrant must have been abated, and the Plaintiff, beyond all question, might then have appealed. By allowing the amendment, the Defendant was deprived of a defence upon which he chose to rest his case, and one, which involving also a question of law, with the determination of which he was dissatisfied, he had a right to aqk for the opinion of an appellate Court.

I hope I shall not be understood as sanctioning an opinion, that every order made by Court in the progress of a cause, may be appealed from. There are many that must be confided solely to their discretion, the proper or ill exercise of which cannot be tested by any rule of lawj but the question as to this amendment, I consider in a very different light, and depending upon fixed principles repeatedly adjudged by this Court. Being therefore of opinion that the County Court did right, and that the judgment appealed from, must be affirmed, it follows,, that a *procedendo*must issue, and that the appellee recover the costs of the appeal»

Seawmxx., Judge.

When an application is made, either by a Plaintiff or Defendant, to amend any part of *426the proceedings, though it is within the *discretion*of (he Court to allow it, yet that is a *legal*discretion, and to be exercised according to the rules of law. *Ml*the in-gtances of judicial discretion are for the attainment of justice, and leave the Court at liberty to do justice “ *all*aroundWhen the application is made in respect to a matter not relating to the *final*determination of a suit, as for a continuance, or the like; as the determination of the Court in such case, can have no possible influence upon the ultimate decision, and is in truth, nothing but a refusal, *then to consider ;*it would be absurd to allow' an appeal in such case. For the party appealing, would defeat his own object, and theopinion of the Court above, could in no way be of service to him. But where the application is to amend the proceedings, *that,*if allowed, *may*deprive the Defendant of a good defence upon the trial ; and consequently is affording, in like manner, to the Plaintiff, a correlative benefit. The *law,*from the state of the pleadings, afforded this advantage to the Defendant ; the *law*also *required and*authorised the Court to relieve the Plaintiff from this difficulty, according to these rules of legal discretion ; if the Court refuse to exercise this authority, when these rules require it, or do exercise it, but in a manner in which it should not, there is in each way, an injury done to the party, and which *■can*be redressed by an appeal.

To apply these principles to the present case, the writ is defective, the party applies to the Court to amend, the acts of Assembly vesting it with the power, entitle ■the party to claim it; if it refuses its aid, when it should be extended, the party is injured, and mustióse his suit, unless he can appeal. It is no answer to say, let him wait till the final determination of the case, and then appeal upon the whole case; for, if it be the case of a Defendant, who wishes to avail himself of some thingin *mitigation,*the accumulated costs will probably place him in a worse situation *with*this sort of *remedy,*than h® *427would be by submitting in the first instance. As to making a motion in the Court below, and spreading it on the record, as has been said to be the usage in the Superior Courts, I can see no possible benefit to be derived from that, for if it be a *partial*defence, there will still be a saddling of the party Defendant with the costs of both Courts without the least necessity.

And as to a party’s staving otf a cause by perpetually appealing, that is for the *Legislature*to provide against,* who already have supposed (as we must presume) that the party cast, is sufficiently punished by the payment of costs, to prevent an appeal purely for delay.

The words of the act of 177? arc, that when any person or persons, cither Plaintiff or Defendant, shall be dissatisfied with the sentence, judgment or decree, of any County Court, he may pray an appeal to the Superior Court. These words should not by *construction*be confined to a *final*judgment, if in so doing, we are to leave remediless any *possible*case, where by appeal, the Court above *would*have power to afford relief.

I therefore think, there should be judgment that the amendment was properly allowed by the Court, thereby confirming their *judgment;*and that a *procedendo*issue to the same Court. The judgment of this Court, there-, fore, being in favor of the appellee, he must have judgment also for his costs.

Judge *Hall*concurred in the opinion of Judge *Seaweil.*

DaKieu, Judge,

*dissentiente.*— It appears from this case, that the Defendant appealed from the collateral or interlocutory order, made by the County Court, permitting the Plaintiff to amend ; there was no final judgment in the cause. By the 82d section of the act of Assembly of 1777, the Legislature authorises any person or persons, who shall be dissatisfied with the sentence, judgment or decree of any County Court, to pray an appeal from such sentence, judgment or decree, to the Superior Court $ but before obtaining which, be must enter into bond for prosecuting the same with effect, and for performing the,judg*428ment, sentence and decree, which the Superior Court shall make, if the cause be decided against him. If this was the only section on the subject, 1 admit that it would be extremely doubtful whether a party to a cause might not appeal from every order made in the cause, although such order or judgment did not finally determine the cause. But when we come to examine the 84th section of the same act, the Legislature clearly gives us to understand that, the *(i sentence, judgment or*decree,” spoken of in the 82d section, means such a sentence, judgment or decree, as finally determines the cause. It directs a transcript of the record of the suit, on which ihe appeal shall be made, to be delivered to the Clerk of the Superior Court fifteen days before the sitting of the term ; it then directs, the method of trial in the-Superior Court. If it is ail appeal from the law side of the Court below, and the issue was to the country, then the trial is to be *de novo ;*if the appeal is on a hearing of a petition for, a filial portion, or a legacy, or a distributive share of an intestate’s estate, or other matter relating thereto, *then the*trial is to be by rehearing in the Superior Court.

This section speaks of such appeals as takes, the cause completely out of'thc County Court. If the party appealing, refuses to carry up the appeal, viz : the transcript of the record ami appeal bond, the appell.ee has his judgment, sentence or decree, confirmed with double costs, notin the County Court, hut in the Superior Court. If the transcript is carried up, and the appellant docs prosecute, the Superior Court gives the final judgment or sentence on the trial *de novo,*if the appeal is from the law side of tiie County *Court;*and the final decree, if the appeal is from the Equity sideof the County *Court;*it docs not contemplate appeals to be brought up or tried in any other way. If the Defendant could sustain his appeal on an order, which did not determine the cause, it would involve the absurdityiof placing part of the cause in the Superior Court, and leaving the balance in the County Court. The appeal should be dismissed.