
    [Chambersburg,
    October 19, 1827.]
    WOODS against WOODS.
    APTEAl.
    An issue directed to and entered in the Court of Common Pleas by the Orphans’ Court, may be removed to the Circuit Court for trial. ■
    Appeal from the opinion of Gibson, C. J., at a Circuit Court for Cumberland county, held in April.last.
    On the 13th of May, 1S25, the administration account of Nathan Woods, one of the executors of Richard Woods, deceased, being presented for confirmation to the Orphans’ Court of Cumberland county, item numbered 36 on the credit side of the account, in which he claimed to retain eight hundred and eighty-one dollars and ninety-two cents was objected to by William Woods, jr., James S. Woods, Samuel Woods, sen., Jane Woods, jr., and Richard Woods; whereupon, at the suggestion of the court, it was agreed that an issue be directed to,,the Court of Common Pleas, in which the said William Woods, jr., and others above-mentioned, be plaintiffs, and Nathan Woods defendant, as of Jlpril term, 1825, in which the plaintiffs are to declare for. money had and received and the defendant to plead payment; upon which issue the right of the defendant to retain the'said sum of money, or any part thereof, or not to retain the samé, or any part thereof, is to be tried without regard to the particular form of the issue. Done in open court by consent.
    The issue thus directed was accordingly entered in the Court of Common, Pleas of Jlpril term, 1825, and was removed by the defendant, by certiorari, to the Circuit Court for Cumberland county.
    
      Penrose, for the plaintiffs,
    moved that court to quash the certiorari, which was refused, and an appeal was now taken from this decision to the court in bank.
    
      Penrose and Metzgar, for the. appellant.
    In Ingersoll v. Bradford, 4 Yeates, 175, no objection was made to the appeal, and no ¿uthority is to be derived from a single case which has passed sub silentio. An issue is not an action. The court directing it has a right to name the forum, and to leave the decision of the fact to the tribunal in which it may have most confidence; especially as the proceeding is for its own information. The issue is not the cause of the forum.to which it has been sent, but of the forum from which it has been sent.
    
      Carothers and Ramsay, for the appellee,
    cited Ingersoll v. Bradford, 4 Yeates, 175. Sterret v. Douglass, 2 Yeates, 46, and Hiester v. Lynch, 1 Yeates, 108.
   Per Curiam.

The argument for the appellant would have weight, if an issue directed by the Orphans’Court were like an •issue sent from chancery, which continues to be under the control of the chancellor throughout, the judges to whom it is sent being merely commissioners to try the fact and certify the verdict without rendering their judgment: so that it is the province of the chancellor alone to judge of the regularity of the trial, ánd of the propriety of again sending the question to a jury. With us, however, a feigned issue is to every legal intent an action; the motion for a new trial being entertained by the court’in which the question has been tried, and the practice being to render a judgment on the verdict for the purpose of enabling the unsuccessful party to have the proceedings reversed on a writ of error. The Orphans’ Court .therefore is not to be governed exclusively by the opinion of the court to which the issue is sent, nor does it exercise any power of selection, as .it can send an issue to no other court than the Court of Common Pleas. But as there is neither reason nor authority for restricting the trial of an issue' to that court, it may be removed subject to the limitations which are applicable to other actions. We do not admit that a motion like the present is a proper subject for an appeal to this court; but as a de? cisión of the principal question may be useful in practice, we have availed ourselves of the occasion to express our opinion on it.

Appeal dismissed  