Coston v. Coston

Bowie, C. J., delivered the opinion' of this Court. A writ of error may be brought in criminal as well as- civil causes. It has no peculiar power which gives it a wider range or greater effect than an appeal in the latter. They are but different modes of accomplishing the same thing.

The review of judgments of Courts of original and inferior jurisdiction, by a Court of appellate jurisdiction. The one is by a writ ⁵⁰⁵ ©figinally issued out of chancery, but now from the Courts having chancery jurisdiction directed to the Courts whose alleged error is proposed tobe reviewed; the other by prayer for an appeal, entered within the time and in the manner prescribed by law, and it maybe safely said that in this State,in all civil cases, an appeal and writ of error lie “in consimili casuP A suit and final judgment is as necessary in one case as the other. In the case of the Matter of the Petition of Samuel J. Coston, decided by this Court at the April term, 1865, (reported in 23 Md. Rep., 271 ,) it was held, that the order of a judge or Court, upon a petition for a habeas corpus, could not be a subject of appeal, because it was not, in legal acceptation, “a judgment or determination of any Court of Law, in any civil suit or action,” from which alone appeals would lie. This decision was founded on a similar ruling in the case of Bell vs. The State, 4 Gill, 304 , in which this Court declared that the writ of habeas corpus was a proceeding summary in its character, addressed to the discretion of the judge or tribunal to whom the application was made, so far as the discharge of the party is concerned; a proceeding where, in many cases, the evidence upon which the judgment is founded, cannot be presented to the appellate Court, and is not final and conclusive,” That decision condensed the reasoning of the adjudged cases in England for a century past, and was several years subsequent to the case of Holmes & Jennison, 14 Peters, relied on by the appellants, and must be assumed to have been settled law, since the Court did not deem it necessary to refer to authorities to sustain their conclusion.

The force of that decision is not impaired in any degree by the new mode of bringing up the question,- as it was not founded on matter of form, but matters of substance. If it were not superfluous to add another to the arguments already urged, it might be said, the main object of the writ of “habeas corpus ad subjia ⁵⁰⁶ cienckm,” as a writ of right, which is to release immediately from unlawful personal restraint, is counteracted by converting it into a suit, subject to all the delays and expenses incident thereto. Although the petitioner should be released by the order of the judge or Court to whom he made application, if that order is subject to revision and reversal by an appellate Court, the final judgment, to be of any avail, must deprive the petitioner of the right of petitioning again; whereas, the right of petitioning for a habeas corpus, is unlimited in its nature, and the application may be renewed toíies quoties, as long as the petitioner is confined, and a judge or Court can be found to whom he may address his prayer for relief. It is conceded by the appellant’s counsel that no writ of error will lie unless the judgment is final.

This Court has said in the case of Bell vs. The State, the judgment in habeas corpus is not final. All the English authorities, from Cohe to Holt, were reviewed by Chief Justice Kent in the case of Yates vs. The People, 6 Johns, Rep., the result of which he sums up in the following energetic and eloquent apostrophe: “ I now submit to the candor and judgment of this Court, whether I have not sufficiently shown that, by the English law, a writ of error will not lie in this case. We have the unanimous opinion of the Court of C. B. in the time of Lord Coke, We have the resolutions of the House of Commons-in the reign of Queen Ann. We have the opinion of the Court of K. B. in the time of George I,, and lastly, we have the sanction of Lord Ch. B. Comyns, and all this without a single case, or decision, or precedent, or opinion, to oppose such a stream of authority.

What intelligent person can then doubt of the law ? * * * * The doctrine was laid down in Lord Coke’s day, as of course, as being then the known and established law. The principle is of immemorial standing. It has become the uncontroverted maxim of ages.’5 Although this opinion was not sanctioned by a majority ⁵⁰⁷ of the Senate of N. Y., they being divided as twelve to