1 Whart. 49 | Pa. | 1836
The opinion of the court was delivered by
It is singular to find ourselves formally settling, at so late a day, a point of practice under the act of 1806, which has been a subject of daily occurrence and repeated decision. The adjudications on it, I had thought, were to be found in the reports; and I have consequently been surprised to find nothing there but the decisions in Downing v. Baldwin, and Brown v. Caldwell, (10 Serg. & Rawle, 114.) The first of these cases was determined shortly before I came to the bench; since which time the practice has been variously modified. Downing v. Baldwin settled no more than that the law of the case may be reviewed, upon the opinion of the judge who tried the cause, as a substitute for a bill of exceptions; but certain expressions of the Chief Justice might be thought to require no more than the presence of the paper on the file, without regard to the circumstances under which it came there. “ The act of Assembly,” he said, “ directs the opinion of the judge to be filed of record; it becomes then a part of the record, and being so, the superior court must of necessity take notice of it. It is surely as much a part of the record as a bill of exceptions; and I think rather more so, because a bill of exceptions is no part of the body of the record, but annexed to it; and may be withdrawn by the party who tendered it. But an opinion filed by positive command of law, is of the body of the record, and must so remain.” The consequence thus indicated is inevitable, where the opinion has been legally filed; but that was not the difficulty. It appears from what was said by Mr. Justice Yeates, that the paper had been filed indisputably at the instance of counsel; and the point was not in contest. But the
Judgment affirmed.