
    No. 11.
    Davenport Evans, plaintiff in error, vs. James Adams, defendant in error.
    
       A writ of error will not lie to the judgment of the Court granting a rule nisi for a new trial; such judgment not being final.
    Motion to dismiss the writ of error. The facts are sufficiently embodied in the opinion of the Court.
    Goode, for the motion.
    O. C. Gibson, contra.
   By the Court.

Warner, J.

delivering the opinion.

This is a writ of error, sued out to the judgment of the Court below, in granting a rule nisi, for a new trial, in a cause pending between the plaintiff in error and defendant.

The question is, will a writ of error lie before there has been a final adjudication by the Court, on the grounds taken in the rule nisi1? We are clearly of the opinion that it will not. The final judgment of the Court, on the hearing of the rule nisi, may be in favor of the plaintiff in error, and then he will not be injured. The granting the rule nisi, is the mode by which the Court is to hear and determine the questions involved in it. We shall not anticipate that the Court will decide those questions erroneously. In Carter vs. Buchanan, (2 Kelly, 339,) we held, that there must be a decision, sentence, judgment, or decree, and that, quoad the subject matter of it, must not be inchoate or interlocutory, but final. In two other cases, not yet reported, we have held the same doctrine.

The writ of error in this case was prematurely sued out, and must therefore be dismissed.  