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writ of error at once. If, on the other hand, not only this interlocutory judgment, but also the judgment on the merits, had been against the defendant, he might, on a writ of error sued out by him, have relied upon errors in either judgment against him, for the first would have been a necessary step to arriving at the second. But in this case, as actually presented to the supreme court on the plaintiff's writ of error, the only judgment against the plaintiff was the final judgment, and he could not object to the interlocutory judgment in his own favor; nor could the defendant object to that judgment, because he had finally prevailed. And if the court should be of opinion that the final judgment for the defendant was erroneous, and should therefore order the case to a new trial, and that trial should result in a judgment against the defendant, he might, by a writ of error sued out to reverse that judgment, bring before the court the original judgment of respondent ouster, without which no final judgment against him could have been arrived at; and in that way prevent the court from rendering judgment in a case of which it had no jurisdiction, if such were the fact. This question is a purely technical one, and the more we have examined it, the more difficult have we found it to arrive at a satisfactory conclusion. We feel great doubts of the correctness of the view here suggested, especially as it does not entirely coincide with that of any of the judges; but it would be a waste of time to discuss it at greater length, for to prove that the question was open in the supreme court, would only be to show that it might have been decided.
It is much easier to show that it was not in fact decided. Upon this point there seems to have been some misapprehension among the judges themselves. The Chief Justice says, on page 427, that "the court is of opinion that the judgment on the plea in abatement is erroneous;" and Justices Wayne and Daniel, as well as Justices McLean and Curtis, evidently suppose this point to be decided, pp. 456, 492, 549, 590. But whatever may have been the aspect of the case when the opinions were delivered in court, and when those of the minority were printed, it now appears by Mr. Howard's report of the opinions as finally drawn up, some of which were never delivered from the bench, that a majority of the judges did not treat the question as before them for adjudication—Justices Catron and McLean being of opinion that it was not open, (pp. 518, 530;) and Justices Nelson, Grier, and Campbell, that it was not necessary to the decision of the cause, and refusing to give any opinion
