Armstrong v. Wright. , 8 N.C. 93 ( 1820 )

I think this Court cannot look into the question arising upon the motion to amend, for two reasons: the first is, that it is a question of discretion, and in all cases of discretion as much is confided to the inferior court as to the Superior Court. The second reason is, that the very act of vesting a discretionary power proves that the subject-matter depends on such a variety of circumstances, where each shade may make a difference, (94) that it is impossible to prescribe any fixed rules or laws by which the subject can be regulated. And, although it be said that a sound discretion means a legal discretion, yet, when we ask what the legal discretion is, we are as much at a loss as we were before the definition to declare the rules or laws by which the discretion shall be regulated. To prescribe fixed rules for discretion is at once to destroy it.

This opinion is very much supported by the practice in England. I do not know a single case where any decision depending on discretionary power has been the subject of a writ of error, and I think that the power of this Court to correct errors in law extends not to those errors which may be committed in the exercise of a discretion, but only to those where the fixed and certain rules, emphatically called laws, are mistaken.

To entertain this question would compel us to take notice of questions on motions to continue, and all other collateral questions arising in the progress of a cause, a full view of which can never be taken from the abstract facts put down upon the record. Besides, the delay and the inconvenience of unraveling and undoing all that had been once done in the court below, after the decision of the point complained of, would overwhelm any good arising from the interference of this Court. We are not unapprised that the Court of Appeals of Virginia entertain jurisdiction even in cases of continuances. There may possibly be something in the constitution of their courts which warrants it, but there is nothing in ours.

Without looking into the motion for the amendment, we think that the judgment of the Superior Court must be affirmed.

Cited: Williams v. Averett, 10 N.C. 311; Turner v. Child, 12 N.C. 134;S. v. Raiford, 13 N.C. 215; McCurry v. McCurry, 82 N.C. 298;Edwards v. Phifer, 120 N.C. 406.

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