Lock v. Estate of Lloyd , 5 Binn. 375 ( 1812 )

Tilghman C. J.

In pursuance of a writ issued by the escheator general, at the instance of Thomas Lock, an inquest was held in the county of Chester, who found that John Lloyd deceased, died without heirs, or known kindred, leaving goods and chattels to the amount of 640 dollars 28§ cents in the hands of Joseph Hall. The inquisition has been returned to this Court, by virtue of the act “ to declare and regulate escheats,” passed the 29th of September 1787; 2 Smith’s Laws 425; and Joseph Hall appears, and desires to traverse the inquisition.

It is provided by the fifth section of the act, that the inquisition may be traversed, and the cause tried in this Court without delay. But a difficulty, arises from a subsequent act of assembly, made the 24th of February 1806, 4 Smith’s Laws 2/1, by which the authority of this Court to try issues in fact, is confined to the city and county of Philadelphia. The counsel for Hall, has proposed several expedients for trying the cause here. 1st. He asks the Court to decide without the intervention of a jury, and produces a record from the Orphan’s Court of Chester county, by which it appears, that on a settlement of the estate of the said John Lloyd, by the said Joseph Hall, his administrator, a balance of only 164 dollars 27 cents, is found to be in the hands of the administrator. 2d. He supposes that the Court may issue a venire to the county of Chester, returnable before themselves in bank. 3d. If neither of these things can be done, he asks a trial by a jury of the county of Philadelphia."

However painful it may be to perceive a defect of justice, yet when it is produced by the act of the legislature, this Court has no power to grant relief. It has been produced however merely by inadvertence, and will no doubt be remedied as soon as perceived. When a traverse is tendered to the inquisition, the cause must be tried by a jury. It is matter of fact which is in dispute, and there is no precedent of the Court’s ever having taken the trial upon themselves. It is urged that it is a trial by record, because the balance in the hands of the administrator has been settled by the Orphan’s Court of Chester county, which settlement is matter of record. But I do not conceive that settlement to be by any means conclusive. It was altogether ex parte, and founded on materials furnished by Joseph Hall himself. He made out the inventory of the intestate’s estate just as he pleased, and the settlement is founded on the inventory. The commonwealth was no party, and the Orphan’s Court could know, nothing of the estate except what Hall told them. If a traverse to the inquisition should be put in, concluding with a prayer that the matter might be tried by the record of the Orphan’s Court, it would be bad. But it is said, that supposing it not triable by the record, still the Court should try it by any testimony which may be produced, because the act of assembly directs that it shall be tried in a summary way. But that is a mistake. The words of the act are that the party “ shall be heard without delay, upon a traverse to the office, monstrans de droit, or petition of right.” There is another part of the act relating to escheats, by forfeiture upon attaint, (sect. 17,) by which it was intended to authorise this Court to hear and decide upon claims exhibited by creditors of persons attainted; but there it is expressly declared, that the justices of this Court, or any two of them, “ may hear and determine upon all and any claims as last “ aforesaid, in a summary manner as to equity shall apper- “ tain.” The different modes of expression plainly shew the difference of intention.

2. There is no precedent for summoning a jury from another county, to appear before this Court in bank. It is contrary to the provision of the act of 1722, by which this Court was established, (1 Smith's Laws 140), the twelfth section of which directs, that issues joined in the Supreme Court, shall be tried in the county from which the cause was removed. It is contrary also to the act passed the 24th of February 1806, by which it was enacted, that no issue in fact shall be tried by this Court in bank. This point was fully considered at Pittsburg, in the case of the Commonwealth v. Smith, 4 Binn. 117, in which we refused to grant a rule to shew cause why an information in the nature of a quo warranto, should not be filed against the defendant. The rule was refused, because the Court had no power to try an issue in fact in bank.

3. I need hardly add, that we cannot accede to the third proposition, of trying this matter at Nisi Prius in the county of Philadelphia. The matter arose in the county of Chester. The inquisition was transmitted from the county of Chester. It would therefore be contrary to all principle, to have the trial in any other place than the county of Chester. I am sorry that Joseph Hall should be without remedy, but the inconvenience is only temporary. I am satisfied that the legislature, which is now in session, will, upon a proper representation, pass an act authorising the County Courts of each county, to receive and determine traverses in cases of this nature.

Yeates J. and Brackenridge J. were of the same opinion.

Motion denied.