Wetmore v. Plant

Hosmer, Ch. J. It is indispensible that there be a distinct perception of the point raised for the determination of the Court. Whether the decision of the superior court, in adjudging the plea of the executors to be correct, was legal, is, at present, no question. To review that determination, a writ of error must be brought to the supreme court of errors. But on the basis of fact, not appearing in the former case in any manner, and upon the assumption, so far as this case is concerned, that the decision upon the record was correct, the plaintiffs present a new point for determination. The precise and only question is, whether it is competent for the plaintiffs in error, now to aver, and take benefit of, the fact, that Mr. Plant was not the judge of probate, when judgment was rendered by the superior court in his favour. The argument by the counsel for the defendant in error, is both correct and conclusive. Nothing, of which the party could have taken advantage in the court below, can be assigned as error in fact. A man shall never assign that for error, which he might have pleaded in abatement; for it shall be accounted his folly to neglect the time of taking that exception. Barnes v. Bulwer, Carth. 124. In illustration of this position, Lord Holt, in the case just cited remarks: “If a feme covert bring an action in her own name, [544] per attornatum, and the defendant plead in bar to the action, he shall never afterwards assign the coverture for error.” It cannot be necessary to discuss a point of practice uniformly established, and resting on the soundest reason. Vid. Bac. Abr. tit. Error. K. 5. 2 Wms. Saund. 101. q. The application of the principle to this case demonstrates, that the writ of error is not sustainable. On plea of abatement puis darrein continuance, the action in the name of David Plant, Esq., upon the fact that he had ceased to be judge of probate, would have abated; and the omission to take this remedy, was a waiver of the exception. Nothing can be assigned for error, that contradicts the record; for the records of courts of justice, acting regularly and within their jurisdiction, are of unimpeachable validity. Hence, in a writ of error to reverse a fine, the plaintiff cannot assign that the conusor died before the teste of the dedimus; because that contradiats the record of the conusance taken by the commissioners. Reynolds & al. v. Dignam & al. Dyer 89. b. Wright v. Wickham, Cro. Eliz. 469. This principle does not admit of a question. Bac. Abr. tit. Error. K. 3. 2 Wms Saund, 101. q. That Mr. Plant was judge of probate, at the rendering of the judgment in the case brought here for revision, is incontestibly apparent on the record, from its commencement to its termination. The action was brought by him in that capacity, upon a cause of action, on which a judge of probate alone could sustain a suit; and in that unquestioned capacity he necessarily recovered judgment. The fact, on which the writ of error is founded, that Mr. Plant had ceased to be judge before the judgment was rendered, is in direct and pointed opposition to the record, and cannot be assigned for error. Peters and Bristol, Js. were of the same opinion ; Brainard, J. being absent. Judgment affirmed.