Vansant v. Boileau

Tilghman C. J. This case comes before us on a motion to quash the writ of error by virtue of which the record was removed from the court of common pleas of Blocks county. An issue had been directed to that court, by the register’s court of Bucks county, to try the validity of a writing set up as the last will of Nicholas Vansant deceased. The court of common pleas, .according to the usual course of proceeding in such cases, [448] caused an action to be entered, a declaration to be filed, and an "issue joined. A verdict was found for the plaintiffs, in which damages and costs were assessed, and judgment was entered. In the course of the trial, a bill of exceptions was tendered by' the defendant who is plaintiff in error in this court; which was. sealed by the judges and sent up with the record. The point contained in the bill of exceptions was argued some time ago; and this court delivered their opinion in favour of the plaintiff in error. The counsel for the defendant in error then moved to quash the writ; and he has urged many ingenious reasons in support of his motion. The Scope of his argument is this: that by the act of assembly of T 3th April 1791, the register’s, court are authorized to send an issue to the court of common pleas for the trial of facts disputed before them, and the verdict establishing such facts is directed to be returned to the register’s court; that if improper evidence was admitted at the trial, this should have been represented, by the party injured, to the register’s court, who might have ordered a new trial, and in case they had refused so to do, an appeal might have been made from their decision; that the court of common pleas Ought not to have entered judgment on the verdict found before them, nor had they any occasion for a feigned issue in order to try the facts sent from the'register’s court. It is unnecessary for me to give an opinion whether or not the facts might have been tried in the common pleas, without having recourse to the expedient of a feigned issue. It is certain that such and no other has been the course of proceeding, from the passage of the act of assembly before mentioned to the present moment. The action, placed on the record of the common pleas, has been treated like all other actions. It has been frequently removed to this court by certiorari and tried by jury here. In the case of Vanlear v. Vanlear in Chester county, a new trial was ordered by this court; and it was once decided that the plaintiff might enter a non pros.; though that decision seems now generally agreed to have been made without sufficient consideration, because the entry of a nonpros. would defeat the act of assembly which directs the issue to be tried, and the verdict to be returned to the register’s court. I can see nothing in the act of assembly which looks like an intent to place the register’s court on the footing of the chancellor in England, who exercises the right of ordering a second trial, [449] if he is discontented with the first. Now unless that court can review the proceedings of the court of common pleas, it would be a great defect in the administration of justice, if errors could not be corrected in this court. If indeed the court of common pleas had given no final judgment in the case, there would have been a technical difficulty hard to be got over: a writ of error does not lie, except on a final judgment. But the judgment entered by the common pleas has removed all objections of that kind. It seems to me, therefore, that whether we consider this matter upon grounds of general convenience, without regard to former decisions, or take it up on the opinions which have been entertained both by the courts of common pleas and by this court, ever since the making of the law on which the case arises, the writ of error was properly issued. I am therefore of opinion that it should not be quashed. Ye ates J. was holding a court of nisi prius during the argument, and gave no opinion* Smith J. Ingenious as were the arguments of the counsel who moved to quash the writ of error, I have not been able to entertain a doubt upon the point. The mode here pursued, of carrying the law on the subject into execution, has been adopted from the passing of that law. Titles to lands depend upon the legality of that mode. Yet if we found that the mode hitherto adopted was not warranted by the law, we ought to correct it. But, as I think that this manner of proceeding is warranted by the law and is calculated to carry it into complete execution, I cannot consent to quash the writ of error. * As to the point contained in the bill of exceptions, against the admissibility of N. Boileau as a witness, if it be open to consideration, I think it deserves another discussion. Are we precluded from discussing it? Let it not be said that judgment is already given upon it. The record was never before this court until this term; the judgment therefore alleged to have been given is a mere nullity. It seems to me not to be yet too late for the court of common pleas (which always under this act puts the issue directed by the register’s court into form) so [450] to modify that issue, as that justice shall not be entangled in a net ^orm’ 'f this court shall be warranted in awarding a venire facias de novo. Brackenridge J. concurred with the chief justice. Motion refused, Judgment reversed, and Venire de novo awarded.