6 Whart. 340 | Pa. | 1841
The opinion of the court was delivered by
The firm of Wanzer & Harrison brought suit to re-’ cover the amount of two notes from Thomas E Wilson. Crutcher and Morgan, who, with Wilson, are the present defendants, became bail in the action,- and entered into a bail bond to the commonwealth, in the sum of nine thousand dollars, on this condition; that if Wilson should be condemned in the action brought against him, he would satisfy the condemnation money and costs, or surrender himself into the custody of the sheriff; or that in default thereof, Crutcher and Morgan would do so for him. The suit against Wilson was brought
The universal practice, throughout the commonwealth, has been to the contrary. Persons about to loan money on real security, or to purchase real estate, look only to the judgment as ascertained and entered on the docket. They never think it necessary for
Since the trial, and after writ of error, the District Court has amended the record. We do not doubt their power to do so, as between the parties themselves, but it cannot be seriously urged that the court can allow an amendment to affect the rights of a subsequent judgment creditor, a mortgagee, or a purchaser; nor can this b.e done against the bail to the action, who are neither parties nor
It has been suggested in the argument, that a writ of error will not lie to the judgment of the court on a plea of nul tiel record; and for this position the counsel rely on the case of The United States in error v. Cook, in which this point is expressly decided. But a contrary practice has obtained without ’objection in this state, and to such as extent as the cases cited show, that it is - not how an open question. It is too late to doubt the power of the court to review in such cases the decisions of inferior tribunals. On issues of nul tiel record, points are frequently involved of the greatest nicety and difficulty, on which the right to property of great amount may depend. It has been the policy of this state to give every facility to the settlement of such questions in the court of the highest resort; and it would answer no beneficial purpose now to retrace our steps, merely for the purposes of harmony with our sister states. But it is insisted that although a writ of error may be taken to such judgment, we have here no judicial knowledge of the identity of the record, on which the parties went to issue, and that the proper course was to put it on the record by bill of exceptions, or to make it part of the proceeding by craving oyer, or by consent. The case in 4 Yeates, 497, was the exemplification of a record of a foreign state, which was adjudged by the Common Pleas incompetent testimony of a foreign judgment, on the plea of nul tiel récord. The decision of the court on this point was reversed by the Supreme Court; and on the argument, the counsel on both sides considered the exemplification accompanying the record as the identical paper offered in evidence to the court below. After the decision of the court overruling the opinion of the Common Pleas, the defendant’s counsel objected to the Supreme Court taking any notice of the paper alleged to be the exemplification of the Connecticut judgment, the same not being certified by a bill of exceptions or any agreement of counsel. After taking time to advise, the Chief Justice delivered the opinion of the court, that having theretofore determined that the exemplification of the judgment in Connecticut was good and legal evidence, the judgment of the Court of Common Pleas was reversed, and the record remitted thither for further proceedings thereon. No reason was assigned by the court, and the only written opinion is by Judge Breckerridge, who enters very fully into the point, the result of which is, that a paper could not be known judicially, but as coming up under a bill of exceptions or tacked to the record on a profert, to the plea, after oyer, or to the replication, before issue joined; that it rfiust appear to be the identical paper that was overruled, by other evidence than what is dehors the record. But the
In Pennsylvania the bill of exceptions in such cases is unknown. The record is brought into court on a day given, as was done here, and the trial is on the record. When the cause is removed by writ of error, the record is certified by the court without bill of exceptions, or making the record brought into court for inspection a formal part of the proceeding. It must be admitted that the practice on this head is not in strict accordance with the practice of other tribunals, 2 Mason, 22; and most probably the error in the practice took its rise from the case of Fry v. Executors of Harvey, (4 Yeates,) on which the defendant in error relies. The court in the commencement of the case was impressed with the difficulty of considering what was not formally attached as part of the record, and proposed sending the cause back to the District Court, that it might be tacked to the record by a certificate from the court. But this course the counsel for the defendants very properly rendered unnecessary by producing an exemplification of the record, and consenting that it should be considered a part of the proceedings. After this, we have as satisfactory proof of the identity of the paper, as was conceived sufficient in Fry v. Harvey, to warrant the court in rendering judgment.
To avoid difficulty hereafter, it would be well for the profession .to attend to having the record on which issue is joined, attached to and made part of the record returned, either by bill of exceptions, or in some other mode, by consent or otherwise.
Judgment reversed; and judgment for the defendants.