ALEXANDER CRAWFORD et al. vs. ANN SHORT, JAMES SHORT et. al., 1 Harr. 355

Harrington, J. The preliminary question in this cause is, whether the third

section of the “act to carry into effect the amended constitution and for other purposes” is constitutional. If it be so, this case is at an end, for the appellants are now in no better condition than they were when last in court, and when their appeal was dismissed for want of such a statement of the points decided by the orphans’ court as is required by that law. And here we are met, in limine, with the inquiry, how is it possible for this court to set in appeal to revise the decisions of the orphans’ court without knowing, and without the means of knowing, what those decisions are?

It is very true that the constitution secures to the party a right of appeal to this court from the decisions of the judges of the orphans’ court “in all matters involving a right to real estate, or the appraised value or other value thereof,” and in all cases, from the decisions of either one of the judges of that court sitting alone: but it is obvious that for the enjoyment of this right some provision was necessary to be made to put the court of appeal in possession of the decisions which were appealed from.

The appeal is not in the nature of a new trial or general rehearing of the case before a new tribunal; but it is simply the right of having the decisions below examined by another court on precisely the same state of facts as was presented to that court. This necessarily requires a statement to be made to this court of the points decided by the orphans’ court, and the constitution being silent on the subject, it is necessarily left to the legislature to make such arrangements as may be requisite for the perfect enjoyment of this right of appeal. The

section of the law under consideration is an attempt to effect this object; it may be imperfect, and thus have failed: tp. procure: in every case the means of enjoying this constitutional right; but this'only, pro yes that further legislation is necessary, and not that the attempt-already made is unconstitutional because it may be imperfect. It stands upon the same footing with the “act concerning bills of exceptidn, cases stated, and verdicts,” which regulates the practice in writs of error sent to the court, and which must necessarily be unconstitutional if the

section now under consideration is so, I think they are both in affirmance and in furtherance of the constitution, and that the legislature had the right, and it is their duty, to make suitable, and, if necessary, further provision for securing the enjoyment of this right of appeal. The constitution furnishes, and can furnish, but a general outline of rights and duties and powers, leaving matters in detail to be regulated by legislative provision. And wherever a right is secured by the constitution, but the means of its enjoyment are not pointed out, it is left to the legislature to furnish them.

In this case it has done so. It has made it expressly the duty of the judge, “at the request of the party appealing,” to sign and seal an instrument, in the nature of a bill of exceptions, presenting fairly and fully the point or points decided, for which the exception is taken. An appeal was taken from the original decision of the chancellor, but no statement of the points decided was signed by him, nor was any application made to him for this purpose. It was his duty to sign it only at the request of the party appealing, and if he is now deprived of his appeal, it is from his own neglect.

We come now to consider the second decision of the orphans’ court, refusing an appeal, and refusing to sign an instrument in the nature of a bill of exceptions after this court had dismissed the first appeal.

We have still no statement of the matters involved in the first decision, and no such statement of the point finally decided as is required by the act of assembly; but we have it stated on the record that the refusal by the orphans’ court of the second application for an appeal, and of the only application that was made for a statement of the points decided, was on the ground that a former appeal had been taken in the cause and dismissed by this court.

The question then arises, whether this court would take up an appeal without the statement required by the act of assembly in a case where the record otherwise shows the points decided, and where it appears that the judges of the orphans’ court had refused to sign a statement of the points. I should say without hesitation that it would; for the failure to get the legal and proper statement does not in such a case arise from the loches of the appellant, and this court is enabled from the record otherwise to ascertain the matters actually decided below.

But not so where the record does not show the points decided, or where the failure to get the legal and proper evidence of the decision is entirely owing to the neglect of the appellant. In the case of Barns vs. Murray and wife, in Sussex county, last term, the appellant had his appeal dismissed for the want of a sufficient statement of the points, though a statement was signed and sent up; and this court afterwards refused to receive another statement which the judge had signed to amend the defects of the first. The party lost the benefit of his appeal by his own loches.

So in this case it was the neglect of the party in not procuring a statement took his appeal, and we have not the means i decided below, or what is appealed from, appeal. We could rehear his case, but it wc previous decision, but a new trial of the case, designed by the right of appeal granted by the Institution. Whether the last decision of the orphans’ court is correct or not, the appellants are not here in a condition to have their appeal from the original decision tried, which is their object.

I have looked somewhat into that question, and though I do not think it necessary to decide it, I will say that the case cited from 3 Term Rep. is a strong authority in favor of the chancellor’s decision. It was an application for a mandamus to the quarter sessions to try an appeal against a conviction by a justice of the peace. The statute gave the right to appeal within six months, on giving notice of the intention to appeal and giving security, within four days after the notice, to prosecute the appeal.

Notice of the appeal was given, and also security; but, it appearing that the security was not entered into within the four days, the appeal was disallowed. The appellants within the six months gave a second notice and entered into security in due form; but the sessions refused to try the appeal, being of opinion that the appellants were concluded. The court refused the mandamus. Lord Kenyon said that after the appeal was lodged and adjudged by the justices to be informal they were functi officio and could not take cognizance of a second appeal.

Ashurst went on the ground of the neglect of the appellant, and Buller thought that even the first notice without the dismissal precluded a further appeal. Grose, J. concurred. Now,- whatever may be the effect of this court having dismissed the first appeal without prejudice, it was a decision that the appeal was informal, and goes the full length of the authority cited. J. Jl. Bayurd and Read, jr. for appellants. Wales and Rogers, for appellees. I am of the opinion that this court ought not to entertain the appeal. The other judges concurred generally. Appeal dismissed. Mr.

Bayard moved to reinstate the appeal, and for a rule to show cause why a mandamus should not issue to the president judge of the orphans’ court, commanding him to sign and seal an instrument in the nature of a bill of exceptions, presenting fairly and fully the points decided; which was refused, without argument. The court referred to the case of Worknot, use of Earle, vs. Millen, in the late high court of errors and appeals, in which that court decided that it had not the power to send a mandamus to the supreme court. So Mr. Bayard took nothing by his motion.