It will appear, from the statement of facts prefixed to this opinion, that this writ of error has been sued out to remove an order of the Supreme Court, directing issues .to be made, to be tried by a jury, between the plaintiff in error and each of the defendants in error, to decide the controversy whether the judgments obtained by such defendants, respectively, against one Isaac L. Hunt, are fraudulent. The plaintiff in error, being likewise an execution creditor of this same Hunt, the contention in the Supreme Court related to the moneys which had been raised at a sale *545by the sheriff of the property of the common debtor; and that court, deeming the right of the case, as presented on the affidavits which had been taken, to be obscure from the great conflict of the evidence, referred the controversy for solution to a jury. It is this rule directing an issue with regard to the bonafides of each of the judgments above indicated, which has been removed for revision into this court; and the first question, therefore, to be decided is, whether, from a rule of this ■character, a writ of error will lie ?

Upon the argument of this point before us, no attempt "was made to call in question any of the general rules, heretofore established, defining the jurisdiction of this court in its supervision of proceedings at common law. On the part of the defendants in error it was conceded, that a determination ■of the court below, which should definitively settle the appropriation of the moneys in* dispute between these execution creditors, would be the proper subject of review in this court by writ of error; and, on the other side, it was not denied that, in order to authorize a recourse to such writ, the order ■of the court below must not rest in discretion, and must be final in its nature, and not merely interlocutory, and must conclude, if unreversed, the controversy between the parties. These principles were properly admitted by counsel to be entirely settled in the practice of this court, and, therefore, the inquiry before us is the narrow one, whether the rule, upon which error has been assigned, was in the nature of a final adjudication by the Supreme Court, of the rights of these parties.

That, in general, a rule for an issue, to be tried by a jury, is but an interlocutory proceeding in a cause, is a proposition which, it is plain, no one will deny. It is, in its general character, similar to a rule for a writ of inquiry, or any other order which makes one gradation in the progress of the suit. The order, therefore, for an issue in the Supreme Court, with respect to the judgment of David D. Fairchild, was clearly a proceeding of this interlocutory character, and, consequently, it is not perceived that, until an ultimate determination is *546reached, any legal right exists in either party to invoke, in that- case, the aid of this court. But, on the discussion before us, an effort was made to discriminate the case of Joseph E. Allen, the other defendant, and to place it on a footing which would take it out of the operation of this rule. The mark of difference thus sought to be impressed was this, that this judgment was invalid, by reason of the insufficiency of the affidavit on which it was founded. There can be no question but that this part of the proceedings is defective; the statute requires the plaintiff, in a confessed judgment, to state, under oath, the true consideration of the bond or other obligation on which his judgment is to be founded; and in the case now in hand, a part of the consideration is alleged to be for “ money due on notes,” made by the party against whom the judgment was entered. This, as has been repeatedly adjudged, is not a compliance with the requirements of the statute. And, as a consequence, it is now insisted that,, as this judgment was absolutely void, as against a judgment creditor in a direct proceeding to obtain a preference, it was error in law for the Supreme Court to refer this case to the arbitrament of a jury. The position taken was, that upon the face of the proceedings, this judgment should have been displaced, so as to make room for the judgment of the plaintiff in error, and that this was a naked question of law, which the court was bound to decide.

Upon the assumption that the defect in the affidavit vitiates, absolutely, the judgment in question, and upon this point no opinion whatever is intended to be expressed, the position thus taken would, probably, have been considered tenable, if it had appeared, in a legal form, to this court, that the -Supreme Court passed upon the point. But we look to the record in vain for the least intimation that that court has, in any way, adjudged that the defect in the affidavit either will or will not have the effect which the plaintiff attributes to it. The only action which has been taken is, the reference of the merits of the case to a jury, and, certainly, from such order, no implication can arise that a *547decision, in favor of the formality in the mode of entering this judgment, has been rendered. So far as the information of this court extends — for we are bound to take the facts as they stand upon the record before us- — we cannot say that this question has been presented for the consideration of the tribunal whose errors it is our province to correct. The facts are these: the plaintiff in error applied in the Supreme Court to have the judgment in question postponed on the ground of fraud, and obtained a rule to take testimony on that point. The question thus raised was one altogether of fact, and when that same question is submitted by the court to a jury, there seems to be no foundation whatever for any inference that such action is based on an assumption that the judgment, to be affected by the inquiry, is, as to form, valid in law. It was said that, if the judgment was void on the record, the reference to a jury was nugatory; but it is evident so also was the rule, in the first instance, to take affidavits, and from that rule could it be pretended that a writ of error would have lain.

The plaintiff in error, instead of standing on the single ground of irregularity in the proceedings, had the right to inquire into the question of fraud, and, in this way, to call for a decision on both the facts and the law. There was nothing in the charaeier of the proceedings compelling him to risk his rights on either of these points; he has raised them both, and, as far as we can see, they are both in the course of being decided. The whole case, as it existed in the court below, was in fieri; there was no final decision upon any conclusive point of law or of fact, and, consequently, we think, at this stage of the matter, a writ of error will not lie.

Let the writ be dismissed.

For dismissal — Zabriskie, C., Beasley, C. J., Vredenburgh, Bedle, Dalrimple, Woodhull, Depue, Cornelison, Fort, Wales, Clement. 11

Contra — Kennedy. 1.