The preliminary question in this-cáse is, whether a writ of error will lie upon the matter before us.
Assuming the writ to have been properly brought, the questipn on -the merits, .though extremely simple, is, comparatively, of little moment; and was there no,-other ¡point for. discussion,,, I should have been silent, not from any doubt of my constitutional, right, as chancellor, to speak and decide on the case, but from motives of delicacy, as I- wish not to sit in review of decisions. assented to dr pronounced by mé, as- chief justice, in the court below.
But the point now under-examination did not, and could not, arise in the, supreme court ;tau# for the > more, full and complete view of it, T shall be obliged to touch on the whole matter of the case,, and shall submit the reasons and authorities -by which I, am-convinced, to the candid and intelligent consideration of the .court. '■ "• ; . / -
The leading facts are few. On the fifth of February, ISIS, George De Peyster went to Elijah Williams, a justice! of the peace in Westchester county, .and -entered- a Complaint of -a forcible entry and detainer of his messuage and1 dwelling house, by Gilbert Shotwell. Upon this complaint, the justice immediately repaired to the premises, and found the family of Samuel Briggs in possession ;■ arid be also-found' that De Peyster, with Thompson, his attorney, and several other persons, had arrived there before him, and were occupied in emptying the house of its furniture, Briggs refused to -surrender the possession- of the house, and the justice directed him to be taken into custody^ which was done, accordingly, and in the presence, and with the sanction of the justice, the house, was completely cleared of Briggs es family and effects.
This is the substance of the case, as taken from an unfinished record or return, which the justice' had prepared to the certi"e-rap issued and delivered -to-h-imj-and-asiakenfrom ¡the justice
But this imperfect return of the justice was aided and supported by a number of affidavits to the same effect, and so far from setting up a want of jurisdiction in the supreme court to take cognizance of the case, the record shows that Isaac Clason and George De Peyster, when called upon to answer, produced a number of counter affidavits; and submitted the case, upon the Conclusions to be drawn from the affidavits on the one side as well as on the other.
The supreme court made no further decision in the case, than to restore Shotwell, or Briggs, as his tenant, to the possession of the house and farm from which he had'been so irregularly expelled.. The justice stated that Briggs was cohvicted, under the statute, of a forcible detainer, but the supreme court did not touch that conviction. The record shows that they did nothing more than award re-restitution to Shotwell, and that nothing more was prayed forion his part ; and this fact becomes very material; for, as I shall show hereafter, re-restitution is a matter resting in the sound discretion of the court, and no writ of error lies upon a matter resting in discretion. If the supreme court had intermeddled with the conviction of the force, by either affirming or quashing it, error would .have lain upon that decision; but in this case the court did no such thing, nor does the record allege any act of the court, but the single act of ordering re-restitution to Briggs. The justice was authorized by the statute under which the complaint was made, to fine and imprison upon his own view and conviction of the force. Sncli a conviction would have been legal; but possession cannot be changed, without the intervention of a jury, and if the justice takes that step, on his own view, he does an unauthorized act. He did such an act in- this case, and it was that grievance, and that only, that the supreme court redressed. They confined their interference (I speak from the record' before us) to the unlawful change of the possession; and upon affidavits, as applicable to that fact, they awarded restitution to Briggs. ; We have, then, at present, nothing'to do with the conviction or the
I am prepared to show that this proceeding by affidavit was usual and regular.
Even if the causé below had been placed on the legality, of the conviction of the force, and not on the legality of the oust/r ■ of possession, the court had .sufficient matter before them to" gi-vé iSheni cognizance of-the case. A certiorari had heen. sued out 'and served, and the. justice made an imperfect, return, but before he completed it, he died. The court, in such a, case, was bound to be indulgent, and.to accept of the imperfect return, aided, as it was,, by the death-bed declarations of thé justice. Such a course is essential to the due preservation of private, right, and is dictated by common Sense as well as by justice and humanity. It is the maxim of law, that the visita-• tian of Providence works no injuryk -The law-is not so technically nice as to sacrifice substance to shadow. It is a more reasonable systém. Jt is, indeed, á collection Of written rea-son, and is never -assailed by ridicule,' except by those who either do not understand, or who mean to pervert it - If a judge at the circuit happened to die after taking the verdict, and before the return of the postea, the ancient law'allowed the' verdict to be returned by the. clerk, though if the judge had-been livingj. he tfas to make; the return. (Jenk. Cent. 216. pl. 59.) So> ,if" a justice takes an inquisition, or records a riot, he may deliver the record into-the-K. B,with his own handj without a certiorari. (2 Hawk. b. 2. c. 27. s. 44.) - Those who cultivate the law as a science, know that it is a Collection of principles, and if the case furnishes a principle, it then furnishes a rule for decision.. . ’ >
.. But all I need show, at present, is, that if the question be on the regularity . óf the possession gained,- (as it was. here,) it aí-' ways muy, and often must, depend upon matter of fact to be "disclosed by affidavit. For thisAve have the case of ’ The King v. Chaloner, K. B. 15 Charles II. (1 Sid. 156. 1 Keb. 572. 585. 1 Lev. 113. Com. Dig. tit. Forcible Entry and Detainer, D.) affprdi a precedent, complete and full to thq'yery
There are many other cases to be found-in which the question of re-restitution has depended entirely upon facts disclosed by affidavit. Thus, in the casé Of The King v. Stacey and others, (1 Sid. 287.) and again,' in the Case of The King v. Bengough, (3 Salk. 287.) the inquisition of ;a forcible entry gnd detainer being removed into the K, B; re-restitution was awarded upon affidavit that, the defendant was not.permitted to traverse'the force. In such cases the- question of re-restittition must depend upon matter aliunde. The record sometimes will, and at other times will not, disclose sufficient for the court to determine whether the possession was lawfully changed, or, indeed, whether there was. any change of the. possession. In the .last ‘cases cited), the refusal to receive'a traverse' of the force, did not appear by the record,-dnd the court were obliged) in Order to prevent manifest injustice, to receive proof of the fact, by affidavit; and if they are to receive affidavits on one side, they are bound to admit counter affidavits on- the other, and, the question Of a legal or illegal ouster of possession must depend upon the credit due' to the affidavits, of which credit the supreme court, and that-court only, can be the judge.
, I have thus shown, and, as 1 trust, to the satisfaction of évéry one, that the proceeding in the supreme cou rt, upon . the question of the restit ution of Briggs,; w as rpgularyand -supported by established usage. It is next , to be shqwn, that the application for re-restitution was an application to the sound discretion of the court; ás much so as an application, to hold to bail, dr to relieve Special bail, or to set aside a default, or to change the venue, or to award a new trial -, and if I establish, this point, it Will follow, of, course, that error cannot lie. ‘ "•:,..• ■ , ) "' • '
The- ...general rule laid, down-in all the- abridgments and elementary works) .is this.; that -the,-IC,JB.. has "a discretionary power oyer the point of ré-restittiíion, and that this power flows from • an equitable construction Of■ the statutes concerning- fori
The general role first, appears in Dyer, (2 Dy. 122. b. pl. 24.) as early as the 2 and 3 Ph. & Mary, that the K. B., notwithstanding the tender of a traverse to an indictment, under the statute to prevent forcible entries ■ and detainers, might grant or stay restitution at their discretion. In Fitz-William's case, 45 Eliz. K. B. (Cro. Eliz. 915. Yelv. 32.) there is a practical illustration of the principle. That was an indictment under these statutes at the quarter sessions, and restitution was awarded to the party, after a certiorari had been delivered from the X. B, It was accordingly held to be irregular, as the delivery of the certiorari was a supersedeas to the power of the justices; but the court said the awarding of re-restitution was but matter in the discretion of the court, and as they conceived here had been an abuse, re-restitution was awarded. Again, in the case of The King v. Ford, 4 J. 1. (Yelv. 99. Cro. Jac. 151.) there was a conviction and restitution made by justices of the peace. The record being removed by certiorari to the X. B. the indictment was held ill; but on the question of re-restitutian, there were only three judges, out of five, for granting it, as it was a matter resting in their discretion, and there was a dif
I will cite but one case more from the .English boolts: the case of The King v. Marrow, 9 G. H. K. B. (Cas. temp. Hardw. 164.). decided, while Lord Hardrwicke was chief justice Of the K. B.,. and in which the rule is laid down with great certainty and precision. It was-the case of an indictment, of a forcible entry, removed by certiorari to the K. B., and on motion for re-restitution, Lord It. cited and adopted the observations in Dalton, (Justice, Ch. 134. p. 319.) that restitution, was a tiding in the discretion of the court, and that they could grant, or deny it, as the justice and reason of the case should" require,
We have a casé to the same point decided in theisupreme court, in August derm, 1803. I allude to the case, of The People v. Shaw, (1 Caines, 125.) and I cite it with the more satisfaction, because the opinion was delivered by a judge who is now a member of the senate,* and who must be able to appj.ec¡ate an¿¡ render full justice to the accuracy of my illustration of this rule of law. In that case, there was an indictment for a forcible entry and detainer, a conviction, thereon, a delivery of possession to the - complainant, and a subsequent removal of the record into the supreme court. The court held the indictment erroneous, and set aside the proceedings, and awarded re-restitution; but, Lewis, Ch. J. in delivering the opinion of the court, observed, “ that ,from the general discretionary power which the. court had in these cases,- they might set a restitution aside, and award re-restitution, whenever it should appear that restitution had been illegally awarded.
I presume I have now produced, cases Sufficient to satisfy the most sceptical mind, that the supreme court had a discretion in this case, to determine whether it was fit and expedient to reinstate Shotwell, or Briggs as his tenant, in the possession of the house and farm from which he had been so violently ejected. And the importance of this power to the public: welfare may foe expressed in the words of Mr. Justice Spencer, when delivering the opinion of the court in Lawton v. The Commissioners of Highways, (2 Caines, 179.) “ The necessity,” he observes, “ of a superintending power, to restrain and correct partialities and irregularities which may be committed by inferior officers,x is so obvious and indispensable, that the court ought, by no means, to deny themselves a jurisdiction of such salutary influence.” Being a matter resting in the sound discretion of the court, the exercise of that discretion is not the subject of review on a writ of error. This is another point, which I will now undertake to illustrate.
There seems to be no position more uniformly admitted, than that error will not lie on a matter resting in discretion. It is upon this ground that applications for new trials.; or for setting aside defaults and judgments; or for changing the venue ; or for time to plead, or to withdraw, or amend a plea ; or to hold to special bail; or to relieve or mitigate bail; or to award or deny a mandamus or a precedendo ; and applications on numberless other points arising in the progress of the suit, or in the ordinary details of the administration of justice, cannot be reviewed by a writ of error. There is this difference, as stated in the commentaries of Blackstone, (vol. III. 55.) between appeals from a court of equity, and writs, of error from a court of law : that the former may be brought upon any interlocutory matter, the latter-upon nothing but only a definitice judgment. It may not be amiss,,, however, to fortify this geiieral doctrine by a few adjudged cases. It might, indeed, be left to rest upon the fact, that there is no precedent in the books of a writ of error, in any such case, and this affords a strong presumption, in law, that no such writ will lie. It, is inconceivable that there should not be one instance to be found, óf error brought upon any of the numerous acts of discretion almost
. But the books speak also in affirmative language. It is well known that an application for a mandamus is an application to the discretion of the court, who will grant or refuse it, as justice and equity shall require; and yet it has been held in the house of lords, in the case of The King v. The Dean and Chapter of Trinity Chapel, Dublin, (2 Bro. P. C. 554.) and again, in the case of Pender v. Heale, (3 Bro. P. C. 178,) that a writ of error would not lié upon the determination of the K. B. to grant or to refuse a mandamus. So, on appeal from an order in chancery, appointing a guardian on the ground that the selectian was not well made, the-house, of lords dismissed the appeal, because the chancellor had a discretionary power in the selec-tian of a guardian. (Preston v. Ferrand, 2 Bro. P. C. 179.) This doctrine is explicitly acknowledged, in the jurisprudence1 <pf this country. Thus, in the case of Burd v. Lessee of Dansdale, (2 Binney, 80.) the supreine court oí Pennsylvania decided, in a cáse of error from an inferior court, that on the refusal to grant a new - trial,, error did not lie, though the reasons of . the court, were reduced to writing, and entered of|record, for they observed " that motions for new trial's were often founded upon equitable circumstances, in which much is left to the discretion i of the judge, The. high court of errors and' appeals in Pennsylvania settled á principié go verning this very case, as they are stated (2 Binney, 91.) to have decided that a writ of. error did not lie on a decision of their supreme court! on a motion unconnected with the trial of a cause. So it was decided in the supreme court of the United States, in the case of the Marine Insurance Company v. Hodgson, (6 Cranch, 206.) that the refu-. sal of an inferior court to allow a, plea tó be amended; or a new pléa to -be filed, or the refusal to grant a new trial, of to continue a cause, were matters which could not be assigned for error. * These! matters,”. said Mr., Justice Livingston, in dé* Evening' the opinion of the court,depended so' much on the discretion of the court below, which must he' regulated more by the particular circumstances of every case, than by any precise and known rule of law,, and of which the superior court can never become fully possessed,' that there would be more danger' in revising matters of this kindy than what might result.
Here we have a series of decisions in the highest tribunals to which we can resort for precedent, or for which we can inculcate a veneration. These decisions establish these two points, 1. That the award of re-restitution, under the statutes of forcible entry and detainer, is not ex debito justicia, but rests in soutid discretion; and, 2. That error will not lie on a decision depending on discretion. The argument, then, on the ground of authority, is conclusive. There is no escape from this conclusion. We must quash the writ of error, or we must, by a mere stretch of power, determine to’ make new law for the ease.
But this rule is not only the positive law of the land, and as such, demanding our assent and obedience, but it is a rule founded on just and wise foundations of public policy, and it can be recommended to the good sense and to the good will of this court.
In the first place, such applications to the discretion of the court, are always supported by‘affidavits, and the court are called to weigh the credit of testimony, and to determine matters of fact. This court can never review such cases, without reviewing and judging upon the same testimony, which would h e assuming a jurisdiction never confided to it by the constitution. The appellate jurisdiction of the English house of lords, was the model in the erection of this court, and it was intended only to review the final judgments of the supreme court upon matter of law.. Every court of original and competent jurisdiction must be clothed with summary and discretionary powers over a vast field of undefined matter, constantly arising, and necessarily incident to the due administration of justice. This will be the case particularly with the highest court of common law, in which the deposite of great confidence, as well as of great power, becomes indispensable to the public safety.
Another reason why error cannot lie upon these cases of discretion is, that it lies only upon a decision that gives or concludes the right of the party, and such decisions, like the one now complained of, do neither. The question of re-restitution does not depend, necessarily, either on the legality or illegality of the conviction of a forcible entry or detainer. We have seen that the conviction may be good, and yet the mode of obtaining possession irregular; wc have seen that the conviction
. But we are told that the power exercised by the supreme court is dangerous to public liberty, and must now', for the first time, be controlled, even by the assumption of an unprecedented power in this Court. This language ought, at least, to have been supported by some strong case of oppression. Hard cases, I know, do sometimes make bad precedents. The imagination is inflamed with the passions, and the heart seduces the judgment. But here there was nothing done- which a good man ought to wish undone. Let us look, for one moment, into the merits of the case, and I am persuaded we shall find nothing in the decision which ought to awáken the sensibility, or disturb the moderation, of the court.
Samuel Briggs, of the county of Westchester, happened,, on the fifth of February, 1813, to be tenant to Gilbert Shotwell; and he w;as, on that day, with his family and goods, suddenly and violently, turned out of his house, into the street. The prosecutor, at whose instance this act was performed, was, ostensibly, George De Peyster, but, really, Isaac Clason, a merchant of the city of New-York. And how was this ejection of Briggs and his family effected ? If we do not applaud the end, we cannot but admire the means. In the evening of the preceding day, De Peyster, in company with William A. Thompson, his attorney, came to the house of the deputy sheriff, and, delivered to him a writ against Briggs, and requested him to serve it on the next day, at Briggs's house.- Let us mark this fact; it is disclosed by the deputy himself. In the afternoon of the next day, Or the fifth of February, Briggs Was arrested at his house, at the suit of De Peyster, in the sum of 3,069 dollars ; and to procure bail, he was taken to his father’s residence, a distance of three and a half miles. While he was in this manner detached from home, the complicated plot was unfolded. De Peyster, in company with Elijah Williams, a justice, and William A. Thompson, the attorney, came to his house while absent, and began to turn his family and furniture out of doors. On his return, before they had finished the work, he remonstrated; but the justice and the .attorney said it
But this court is advised to construe with great liberality its power of review, and it is even asserted, that its capacity to sustain writs of error is greater than that of the English house of lords. As I consider such doctrines to be alarming heresies, and dangerous to our constitutional rights, I must beg the patience of the court, while I bestow a few thoughts on their merit and tendency.
My position is, that a writ of error will not lie here, except upon a final judgment of the supreme court upon a question of law, and that our constitution and statute intended to go to the extent of the British usage on this point, and no further. This is evident, from the language of the constitution and the statute, and from the whole scope and structure of our judicial system. No other construction can preserve its value, its safety, its symmetry, and proportion. It appears to me also to be the dictate of sound policy, and, for reasons which cannot but be felt by every member, that this court should not exercise appellate powers but in cases of clear and undoubted jurisdiction. If writs of error ought to be more extensively applied than they now can be under the existing rules and usages of law, we have a legislature always ready and able to afford every requisite remedy; and this, I presume, will be admitted to be the legitimate mode, if any there be, of enlarging the powers of this court, so as to embrace cases depending on discretion. But if we had the right, we ought to weigh well the mischief of creating the precedent of writs of error upon mere collateral and discretionary proceedings in the supreme court. If an execution in ejectment be irregularly issued, the court will set it aside, and restore the possession. This is a very ordinary case of jurisdiction; (Dacres v. Doe, 2 Blacks. Rep. 892. Goodright v. Noright, Barnes, 178. Anon. 2 Salk. 583.) and yet, upon the new doctrine, a writ of error would lie even for setting aside an execution. It must equally lie in every stage of a cause, and upon all those numberless acts and decisions to which I have alluded, and which spring up almost spontaneously in the progress of a suit. The bounds of the
■Nor must we indulge the hope, that this ca'n be only an imaginary picture. I know better,.. The business in the, supreme court ¡depending upon' affidavits,, and not.involving any final decision on the merits, is almost inconceivable. The average number of cases must certainly exceed five hundred, and, probably,
The spirit of litigation requires checks rather than excitements. We may all recollect the impediments which the legislature; a few years ago, very wisely threw in the way of the prosecution of one species Of writs of error, I mean certioraris to justice’s courts. The statute required the supreme court to disregard all defects of form in matter of law, and to decide on the very right pf the case; and-it limited the plaintiff’s costs, if successful, to 25 dollars, but subjected hint to full costs, if he failed; Yet theré are, annually, upwards pf 200 certioraris brought to a hearing before the supreme court, and many of them not of 5 dollars in value, and scarcely one of them that will defray ffie expense of the suit. It is probable that there aré hundreds
. There is .also another fact on this subject of .costs, which ren!ders the soiight-for ihnovatioffthé more" dreadful. I allude now to the- new fee bill; passed, last April, which has advanced the costs in-litigated cases, in all: the courts below, 25. per cent, and
They are extremely moderate and guarded in England, on the subject of writs of error. I will give to the .court, on this point, an interesting fact. According to Colle’s and Brown’s parliamentary reports, (and which have collected all the cases to be found,) there were from the year 1697 to the year 1778, (a period of eighty years, and that, too, the most happy and flourishing in the English history,) only sixty-four cases in error brought to a hearing in the house of lords. We must conclude from this fact, that writs of error are there confined within very legitimate bounds, and that the suitor never presumes to speculate in new paths, nor to make large demands upon the credulity of the court. '
Indeed, when we take into consideration the cautious and temperate sprint which pervades the English. administration of justice, and the diffidence -with which their learned judges exercise the power of review, it is nq longer a matter of wonder that their system of law should be as renowned for its stability as for its wisdom. And, since Providence has permitted that system to be established here, in all its maturity and perfection, it ought to be the just pride, as it is the bounden-duty, of this
I have now finished the question which I undertook to examine, and the following prepositions appear to me to be true:
1. That it was the Usual and proper course for the supreme, court to examine, upon affidavits the regularity of the ouster of Briggs. " , .
2. That it. rested in their sound discretion, under all the circumstances of the casé, whether or not they would order the re-restitution of Briggs. : ,
3. That such an Order, is not the subject of a writ of error ; and : '
4. That in justice and good policy, it ought not to be subject to one. ■ ,
I am, accordingly, of opinion that the writ of error ought to Be quashed, . „ :
Lewis, Senator, was of opinion that a writ of error was properly brought in this case; and that the decision of the supreme court ought to be reversed. ,
Wilkin, Senator, Was of the same opinion.
*.
Lewis, formerly Ch. J.
(a).
The costa of the plaintiff in error, in this case, were actually taxed by the clerk at 845 dollars!