Administrator of Lewis v. Lewis , 1 Minor 35 ( 1821 )

The Chief Justice

delivered the opinion of the Court.

The 8th section of the 5th Article of the Constitution, taken separately, would seem to confine Chancery jurisdiction to the judgment of the Circuit Courts respectively, until the establishment of a Court of Chancery. This conclusion would, perhaps, be strengthened by considering the 3d section of the same Article in connexion with the 8th. But the rule of construction, whioh requires that the whole of an instrument should be taken together,-ut res magis v'aleat, applies with great force here. Every part of the Constitution relating to the judiciary should be taken into view, and effect given to each,'if possible. By the first section of the 8th Article, the judicial power of this State shall be vested in one ■“ Supreme Court, Circuit Courts, to be held in each County in the State, and such inferior Courts,” «fee. This section alone s -ems to exclude the idea of any other Supreme Court; it certainly does not authorize -any other Supreme co-ordinate tribunal. The second section declares the powers of this one Supreme Court — “Ti eSupreme Court, except in cases otherwise ■“ directed by this Constitution, shall have appellate jurisdic- “ tion only, which shall be eo-extensiv.e with the State,” «fee. “ Provided that the Supreme Court shall have power to is“sue Writs of Injunction, quo Warranto, habeas corpus, “ and such other remedial and original Writs as may be ne- “ cessary to give it a general superintendence and control of “ inferior jurisdictions.” If there can be but one Supreme Court of appellate jurisdiction co-extensive with the State, all other jurisdictions must be inferior.' Any other Courts, now established, or which can hereafter be established under the Constitution, whether Courts of common Law or Courts of Chancery, are and will be inferior. The concluding clause of the 2d section gives to the Supreme Court the power of issuing such remedial and original Writs as may be necessary to give it a general superintendence and control over inferior jurisdictions. The convention then intended that this Court, however organized, or by whomsoever held, should alone be Supreme — that all jurisdictions in the state should be inferior to it, and that it should generally superintend, control, and limit them within their proper spheres.

The Court is therefore of . opinion, that the motion todis-miss must be overruled.

At December Term, 1821 — The- ease was determined- on the Errors assigned, which, as wellas another question, raised, appear in the

Opinion of the Court, delivered by the

Chief Justice.

In the argument, Mr. Crawford for the plaintiff in Error, has contended that the general rule “ That the plaintiff “ shall be confined to the Errors assigned,” does not apply to Chancery Cases in an Appellate Court; but that if other Errors than those assigned be found in any part of the Record, it will be the duty of the Court to reverse. To support this position, the practice of the Supreme Court of the United States, and cases there determined, have been relied on. It has been settled by some of the earliest decisions of this Court,^(a) that the parties shall be confined to the points put in issue by the assignment and joinder ; but as that rule was adopted with a general view to the practice of the Court, and without considering whether there should be a difference between cases at common Law and cases in Chancery, we have examined this question with some care and deliberation. All the cases cited to support the position of the plaintiff were carried to the Supreme Court of the United States by appeal, and not by writ of Error. It does not appear to be the practice of that Court to assign Errors in such cases; and it would therefore appear to be necessary to examine the whole Record to determine whether the decree of the Court below was correct. By the Act of Congress, 1789, it is made the duty of the Circuit Court of the United States “ in causes of Equity, Admiralty and Ma- “ ritime jurisdiction, to cause the facts on which they found “ their sentence or decree fully to appear on the Record, “ either from the pleadings and decree itself, or a state- “ ment of the case, agreed to by the parties or their Coun- “ sel; or, if they disagree, by a stating of the case by the “ Court.” 2. L. U. S. Ch. 4. sec. 19. There appears|no good reason for such a provision, unless it was intended for the benefit of the Appellate Court. We have no such Statute as to the Courts of this State. This case is not brought here in the manner which seems to be practiced in the Courts, of the United States, but by writ of Error. Errors have been assigned according to the uniform practice, and we can see nothing which will warrant a departure from the established rule — to confine. the parties to the points put in issue. If, however, the Court were authorized to go beyond the assignment, we should not feel justified in reversing the decree from the facts as they appear in the Record. In conformity to a decree of the Supreme Court of Mississippi, auditors were appointed to take an account between the parties. This order both parties, by their Counsel, acquiesced in. A report was made by the auditors agreeably to the order. The exceptions to the Report were not filed with the auditors or the Clerk, or offered to the Court until a motion was submitted to enter up a decree according to the auditors’ report. From the.Record we cannot see that the exceptions were good — they were not offered in proper time ; and the account appearing fair on its face, the Court, at that stage of the proceedings, was not authorized to open it for re-examination. (2 Maddox, 389.) It was contended that the certificate or receipt, given by-defendant in Error, precluded him. The receipt is in qualified, not in general, terms: but, however general it might have been, it was not conclusive in a Court of Chancery. If a receipt be obtained by fraud or mistake, is it not competent for a Court of Equity to annul or correct it ? So far from insisting on this ground, it appears that the defendant, in the Court below, consented to include this receipt with the other matters to be tried.

It is assigned as Error that the decree is the decree of the Clerk,- entered in vacation, and not of the Court. The Record, shows that “ the Court took time to decide the “ whole in vacation,” which, by consent of the parties, was “ to be as of that term.” Did this consent authorize the decree to be entered out of term time ? The answer of the Counsel for plaintiff is that consent cannot give jurisdiction. The law had given to the Court jurisdiction of .the subject matter in controversy. The parties agree that this jurisdiction may be exercised in a particular manner, and to waive all objection to the irregularity — that the power of determining the cause in term time may be exercised out of term time. It would not be regular to make a final decree during the same term at which the bill was filed; yet if both parties should put the case in a situation to be heard, and consent that a final hearing and decree should be then had, could either be permitted to impeach the decree, merely on the ground of the time at which it had been made 1 This is a case in which the maxim “ consensus toilit errorem ” applies with strict propriety. A party cannot take advantage of an irregularity after having, entered on the Record his consent to waive it. The pai'ties cause to be entered on the Record their consent, that the Judge of the Court make his decree in vacation, as of that term — rthe Judge made a decree, and required the Clerk, on the happening of a certain contingency to enter it. Did this contingency happen ? The 3d assignment alleges that it did not. According to the terms of the decree, and after the time limited for that purpose, a majority of the auditors certified that the defendant below had not produced the books,- accounts, &c. in- conformity to the decree. It is contended that the certificate of the other auditor shewed that she had produced them. The Judge’s order required the certificate of a majority of the auditors, and that the defendant should produce the books, accounts, &c. and make affidavit that they were all which were in her possession, or within her knowledge. The certificate of Mr. Bnchannan states that certain- papers were delivered by Robert Lewis (then not a party in the cause) who made oath that they were all which were ever in his possession. It furnishes additional evidence of the defendant’s failure to perform what was required to be done by her, before the auditors were to go into another’investigation of the accounts.

The decree, by its own terms took effect at the expiration of the time limited for the defendant’s prbducing the books, accounts, &c. if she failed to produce them. The Clerk was required, on this fact being certified by a majority of the auditors, to enter the decree according to the Report which had been made — surely not his decree, but that of the Judge, made on the account as reported.

The last assignment was that the decree was against Pat-sey Lewis, in her own right, when she was party only as ad-ministratrix. The Court did not understand the Counsel as insisting on this point. The deci’ee is not entered with strict formality; but the Record shows that Patsey. Lewis was made party, as administratrix of Figures Lewis, the original defendant, and no part of the Record appears to charge her in any other capacity.

It is the opinion of this Court that the decree of the Court below be affirmed, with costs.

Judge Lipscomb having been of counsel, gave no opinion-

(a) Ripley vs. Coolidge and Bright, ante, 11.