WOODRUFF v8. CARNS.

ON CERTIORARI,

On appeal from justice's court, the Common Pleas may give judgment for more or less than the justice did. Semb. that appellee should have notice of the appeal,

KIRKPATRICK, C. J.-It appears from the record sent up with this certiorari, that John Carns the plaintiff below, instituted a suit against Silas Woodruff, the defendent below, before James B. Hunt, Esquire, one of the justices of the county of Cumberland; that on the day of appearance, he filed with the said justice a copy of his account containing a variety of particulars, amounting in the whole to upwards of ninety dollars; and that Woodruff, the defendant, also filed a copy of his account, with an intent to make a set-off, as is presumed, but he filed therewith no plea of payment, as the law in that case directs. The justice upon the trial, examined witnesses, and also the book account of the parties, and thereupon rendered judgment for the plaintiff Carns, for $4 debt, $2 16 of costs.

[*] From this judgment, Carns the plaintiff, appealed to the Court of Common Pleas, and there obtained judgment for $71 52 cents, and this judgment is now brought up into this Court by certiorari.

There are sundry reasons assigned for the reversal of it; many of them altogether formal. Those which seem to be relied upon, are the second, viz: that the defendant Woodruff had no notice of the appeal; the third, viz: that the court could not, by law, render judgment for a greater sum than had been given below; and the fourth, viz: that the court refused to open their judgment, and give the defendant a re-hearing.

As to the third and fourth of these reasons, it is only necessary to say, that the plaintiff in certiorari has mistaken the law. Upon an appeal from the judgment of a justice to the Court of Common Pleas, the cause is to be heard anew upon its merits, and judgment is to be rendered according to the justice of the case, without any respect to the judgment below. It may be either for the same, or for a greater or lesser sum than the judgment appealed from; it may be either for the same, or for the adverse party. And as to the opening of such judgment and granting a re-hearing, it is altogether a matter of discretion; and even though that discretion should be unfairly exercised, (which by the bye, does not appear to be the case here) it is no matter of error to be amended by this Court.

The second reason is, to wit: that Woodruff, the defendant, had no notice of the appeal, deserves more attention.

AR

For, as upon the appeal, the cause is to be heard upon its merits, it is essential to the administration of justice, that the appellee should not only have notice, but also time to bring in his witnesses and other evidence. I do not recollect that the act expressly requires this, but it is a dictate of natural justice, that a man should not be condemned without a hearing. And if the fact had been so, and had been satisfactorily brought up before this Court, I should have been inclined [*] to reverse on that account; but it is not brought up; and the mere suggestion of counsel in the assignment of reasons, cannot be taken as a ground of adjudication. Therefore, I think the judgment of the pleas must be affirmed.

The other Judges concurred.

Judgment affirmed.

COZENS and ur vs. DICKINSON.

ON CERTIORARI TO SALEM ORPHAN'S court.

A certiorari may issue to remove proceedings of the Orphan's Court in dividing lands: but it must be within three months after final decree. A motion was made to quash this writ:

1st. On the ground that it was improvidently issued, it being allowed by a judge at his chambers; that a special certiorari ought not to be allowed but on motion in open court, on a sufficient cause made out by affidavit; but as the Court gave no opinion on this point, it is unnecessary to say any thing more on it.

2d. That the act authorizing the partition of land under an order of the Orphan's Court, Pat. 77, declared the report of the commissioners when confirmed by the court conclusive to all parties, and therefore that a certiorari could not legally issue for want of jurisdiction in this Court over the subject

matter.

3d. That the Orphan's Court was substituted in this State, in place of the Ecclesiastical courts in England, to which no certiorari would lie; that the Legislature, sensible of this, had in certain cases in the Orphan's Court Act, authorized a certiorari to issue from this Court; but in doing that, they had in express terms limited the time for bringing such certiorari to three months from the time of pronouncing the final sentence or decree of the court; that the confirmation of the report of the commissioners [*] in this case, was about ten years before the certiorari issued.

To these objections the counsel for the plaintiffs answered— That the general superintending authority of this Court over all inferior jurisdictions, could only be restrained by plain negative words in a statute; that although the Orphan's Court might be said in some sense, to be substituted in the place of the English Ecclesiastical courts, yet that depended on the subject matter of which the partition of land made no part; that there had been no final sentence or decree of the Orphan's Court in the sense contemplated by the act, which spoke of parties to the suit, confining the provision in the 19th section of the Orphan's Court Act, to cases where actions existed, and had been finally determined; that the proceeding below could not be considered as an action, it was an exparte application against an infant, who was not cited to shew cause against the partition, the whole proceeding therefore was exparte; that there could not be an action without parties; that it appeared from the return sent up that the commissioners had exceeded their authority; they were appointed to divide the estate among three children and had given the whole to two, thereby disinheriting the third; that the confirmation of the report of commissioners by the Orphan's Court was a matter of course, no party being in court to oppose it; that the act comprehended a body of jurisdiction, independant of the case of partition of land, to which the provision and limitation in the 19th section applied, and not to that of the partition of land; but even if they did, yet that the plaintiff in this Court was an infant; that the Legislature could not intend in this manner to sacrifice the rights of infants by authorizing an exparte proceeding, and then preclude them from all remedy; that by the principles of law, infants cannot be guilty of laches, but are privileged. 1 Blac Com. 493, 1 Swift 218.

The counsel for the defendants replied-That as to the infancy of the plaintiff, in whose right this writ is brought, [*] the first answer is, that the statute makes no exception in case of infancy, which is usual in cases where it is intended that they are to be privileged; besides, it is only in cases of infancy that the Orphan's Court have jurisdiction of the subject matter, that is, the partition of land; now it would be strange that the very circumstance that gives the court jurisdiction, should create an exception to a general provision in the act, limiting a review of the proceedings. Yet even supposing there is an exception in favor of infants, yet the infant is only given a reasonable time after it comes of age to bring the action, which in the present case, under the equity of the act, ought not to exceed three months, or at most a year, yet years have elapsed since the plaintiff

came of age, before she brings her action. But they further contended, that a certiorari would not lay at all; that the confirmation of the report of the commissioners by the court was conclusive to all persons concerned, that is, it is conclusive as to the subject matter; it was not conclusive as to title, neither was a judgment in a writ of partition conclusive as to title, but to the partition and nothing more; that the order of the Orphan's Court, confirming the report of the commissioners is conclusive, and ex vi termini, a final sentence or decree of that court: the words of the act do not confine the limitation to cases arising out of suits originating by process, nor to suits at all; but even if it did, there was a suit below, there were parties and a judge, and that was all that was necessary to constitute a suit or action; that a certiorari is not a writ of right, nor quasi a writ of right, but issuing under the sound discretion of the court; as the court could not give relief, the writ ought not to have issued.

BY THE COURT.-If the Orphan's Court Act had been silent as to writs of certiorari, it would have been matter of consideration for this Court, whether allowable at all, and if allowable, in what cases; but the act itself has decided those questions, and laid down the rule, which is, that all final sentences or decrees of the court, except where an appeal is given to the Prerogative Court, shall be subject to be removed into this Court by certiorari. [*] We must consider an order of the Orphan's Court, confirming the report of commissioners appointed by them to make partition of land, as a final sentence or decree of that court; and if this certiorari had been moved for in three months after this sentence or decree had been pronounced, this Court would have had full authority to allow the writ; but we think we are barred by the positive language of the proviso from allowing it after that time. Nor do we think that we should be justifiable in allowing infancy as an exception to the positive provisions of the statute, laying down a general rule without any exception, the more especially as it is infancy alone that gives the Orphan's Court jurisdiction of the subject matter; should the Court except infancy, they might with equal propriety also except coverture, and no one could say where this discretion would end. If this act authorizes proceedings hostile to the rights of infants, at the same time leaving them no remedy, although it is to be lamented, yet it cannot be corrected by this Court, but affords a proper subject of legislative consideration. We therefore think that the writ of certiorari must be

Quashed.

BELL vs. VANRIPER.

Trial at bar, by a foreign jury, under special circumstances, not within the terms of the statute.

It was moved on the part of the plaintiff, for a foreign jury, and also for a trial at bar, on the ground that the real parties were the East-Jersey proprietors, plaintiffs, and the corporation of the town of Bergen, in Bergen county, defendants; that the members of the corporation of Bergen, had great influence in the county of Bergen, and therefore that a fair and impartial trial could not be had by a jury from that county; that the cause [*] embraced matter of difficulty and importance, and therefore required a trial at bar.

This was opposed by the counsel for the defendant. They contended that an impartial jury could be obtained from those towns in Bergen county, that had no interest in the controversy; that even if a foreign jury was necessary, there could be no necessity for a trial at bar; the action was an action brought for the arrearages of rent, and depended on a plain instrument; besides, there was a legal objection to a trial at bar, all such trials being restrained by our act of Assembly, except the matter in controversy amounted to $3000; that the declaration in this case only charged $2800 for rent in arrear.

The counsel for the plaintiff argued, that it was not the precise sum contained in the declaration that constituted the matter in controversy, but that any other interest collaterally in question, might be brought in; that although they did not charge as rent arrear more than $2800, yet the matter in controversy was the right to the future rent as well as that already due; and also damages for the detention of the

rent.

KIRKPATRICK, C. J. and ROSSELL J.-Were of opinion, that both rules should be allowed.

PENNINGTON, J.-Concurred with his brethren in allowing a rule for a foreign jury; but was decidedly against that for a trial at bar. In the first place, he did not think the plaintiff within the act of Assembly as it respected the sum in controversy; but if he was, he could perceive no necessity for a trial at bar; he was of opinion that this Court listened too readily to applications for trials at bar. Trials at bar were very expensive, and often-times oppressive and ruinous to the parties, by compelling the attendance of themselves, their counsel, witnesses, and jurors, at a great distance from their homes, and at an immense expense. Besides, since the practice had been obtained of reserving points at