Baker v. Williamson

• Decision Date: 16 January 1845
• Citation: 2 Pa. 116
• Parties: BAKER <I>v.</I> WILLIAMSON.
• Court: Pennsylvania Supreme Court

2 Pa. 116

BAKER v. WILLIAMSON.

Supreme Court of Pennsylvania.

December 30, 31, 1845.

January 16, 1845.

Dec. 30, 31.

ERROR to the Common Pleas of Delaware county.

Tilghman, for defendants, moved to quash, for that no writ of error lies to a feigned issue directed to inform the conscience of the chancellor. The motion and case were heard together.

Edwards and Lewis, for plaintiffs.—The judge was sitting on the common law side, and unless properly tried, equity is not satisfied.

In analogous cases, error lies as on issue from Register's Court, Vansant v. Boileau, 1 Bin. 444; or from Common Pleas, Kellog v. Krauser, 14 Serg. & Rawle, 137; Neff v. Barr, Id. 171. The 33d sect. of the act of 1836, Purd. Dig. 85, gives a general rule for the Orphans' Court and Courts of Chancery.

B. C. Tilghman and Tilghman, for defendants.—The judgment was a nullity, a certificate only should have been given. 11 Price, 162; 6 Yerger, 402; 2 Rose, 178. This being a new jurisdiction, error does not lie. Keehlanan v. The Com'rs, 5 Binn. 24; Commonwealth v. Beaumont, 4 Rawle, 366; 9 Serg. & Rawle, 317; 3 Binn. 30; 3 Serg. & Rawle, 410. It is merely to inform the courts, and within their power, 1 Serg. & Rawle, 45, 46; Id. 255; 2 Ves. 553; 1 Dow. N. S. 139; and they may order the parties to be examined, 2 Moll. 24; 1 Jacob. 516; Amb. 210; and will not grant new trial for rejection of evidence in all cases, 2 Russ. 63; 19 Ves. 500; 9 Ves. 155. This is not a final judgment on which alone error lies. Erie v. Brawley, 8 Watts, 530. Appeal is the remedy; act 1836, sect. 36.

Jan. 16. ROGERS, J., after stating the material facts of the case.

The defendant in error moved the court to quash the writ of error, alleging that it is a proceeding in equity; that the cause is now pending and undetermined in the Court of Common Pleas; that the remedy, after final decree, is by appeal to this court, and consequently no writ of error lies.

This is a question of the first impression in this state, and as the legislature has, of late years, thought proper to clothe the courts with extensive equitable powers, it becomes of great importance as a matter of practice.

Is this a case in equity? is the first question; and on this point we have no doubt. Fraud, accident, and trusts, are peculiarly cognisable in a court of equity. This is a proceeding under the several acts of Assembly to prevent the failure of trusts, and to provide for the settlement of the accounts of trustees. In all the acts, whether for the appointment of trustees to prevent a failure of trusts, or to enforce the faithful performance of the trusts, the legislature, regarding it as an equitable power, have given the courts authority to grant relief in equity; from this, the inference is plainly deducible, that the equitable remedies are to be administered by the same means, and in the same manner as is usual in a court of chancery, except so far as they are restrained by the acts themselves, or by inveterate practice. Of the latter, the 33d and 34th sect. of the act of the 14th June, 1836, are examples. The several courts of Common Pleas, as is there provided, shall have the same powers and authorities, and the manner of proceeding, to obtain the appearance of persons amenable to their jurisdiction in cases of trusts, and to compel obedience to their orders and decrees, and enforcing execution thereof, shall be the same as are now by law vested in and provided for the several Orphans' Courts of the Commonwealth. And the 31st sect. directs, that it shall be lawful for any judge, issuing a citation to any assignee or trustee, as hereinbefore provided, if the circumstances of the case shall appear to him to require it, to order such citation to be returned to a special court, to be convened for the purpose, in the manner allowed by the laws relating to the Orphans' Court. These acts direct the mode of proceeding in certain specified cases, but in no wise do they interfere with the essential principle that the practice of the courts of Common Pleas, in relation to trusts generally, shall be according to the formulæ which regulate courts of chancery. What then is the rule of practice in a court of chancery? On this point the authorities are full, and without difficulty. In all cases where an issue is directed out of chancery, inasmuch as the issue is merely to inform the conscience of the chancellor, no writ of error lies. At least, this is the conclusion that inevitably flows from the case; and no case to the contrary has been cited. That the Court of Common Pleas, in relation to this matter, was sitting as a court of equity, we think too clear to admit of doubt. Judge Bell directed this issue; the issue is to be tried by himself with the aid of a jury; it is intended to inform his conscience as a judge sitting in a court of equity. It must be remarked, that he has the power to direct the issue, and that is the point to which the attention of the court, strange as it may appear, in Kellog, Assignee, v. Krauser, 14 Serg. & Rawle, 177, was principally directed. The court there decided, that the Court of Common Pleas have power to entertain a motion for a set-off, or open a judgment, or to order a feigned issue, for the purpose of ascertaining necessary facts. So in Neff v. Barr, 14 Serg. & Rawle, 166. And in directing an issue, devisavit vel non, Vansant v. Boileau, 1 Binn. 444, that a writ of error will lie in these cases, it is not my purpose to deny. They are proceedings of a court of law rather than of equity, and it is equally convenient on the issue to determine the whole case as in other modes. But I do not perceive that the cases rule any thing as to the proper mode of conducting an issue, when the object is merely to inform the conscience of the chancellor. Nay, the distinction is glanced at in Neff and another v. Barr, already cited. It is there said, that a feigned issue is to inform the conscience of the court as to disputed facts, and is to be moulded as their discretion dictates; and the mode in which it is done by the court below is not the subject of a writ of error, and cannot be judicially decided by the Supreme Court. True, in this case it is ruled, that errors on the trial of the issue may be corrected by writ of error. When the proceedings are according to the course of the common law, or in the nature of proceedings at common law, they may be reviewed by the Supreme Court, either on writ of error, or by certiorari, as in the case of the Commonwealth v. Beaumont, 4 Rawle, 366, and other cases. This is not denied. But the question is, where the proceeding is purely a proceeding in chancery, and the chancellor directs an issue to inform his conscience, can errors of law be corrected on the trial of that issue; in other words, has the court, which directs and tries the issue, power, without review or error, to determine all matters of law which occur in the course of the investigation? On the hearing of a cause, the chancellor often deems it expedient to direct an issue, a case, or an action. In the Court of Exchequer, which is both a court of law and equity, if a question of mere law arises in the course of its equity jurisdiction, the court will decide upon it without referring it to another jurisdiction. In our practice, where our courts have common law and equity...