
    [Sunbury,
    June 17, 1828.]
    TODD, Administrator of BEALE, to the use of DOYLE, against PATTERSON.
    An appeal does not lie to the Supreme Court from a judgment of the Circuit Court, on the plea and issue of mil tiel record.
    Appeal by the plaintiff from the judgment of the Circuit Court for Mifflin county.
    This case was originally an action of debt brought by Thomas Beale, for the use of E. PV. Doyle, against John Patterson and William C. Kelly, trading under the firm of Patterson and Kelly. It was arbitrated at the instance of the plaintiff, and on the 26th of June, 1821, (on which day the arbitrators met by the agreement of the plaintiff and Kelly, the day to which they stood-adjourned, having passed without-a meeting,) the arbitrators reported, “ that there appeared due the plaintiff, Thomas Beale, for E. W. Doyle, the sum of four hundred and thirty-six dollars and seventeen cents, being the amount with interest of two sales made to Patterson and Kelly, on two writs of venditioni exponas.”,
    
      Docket Entry. — “Report filed Jphe 26th, 1821, for the plaintiff, for four hundred and thirty-six. dollars and seventeen cents. Same day the’defendant, W. C. Kelly, appealed. See recognisance, &c.”
    The recognisance of appeal was in the usual form, by W. C. Kelly and Robert M'Clelland, conditioned that the said defendant shall pay all costs, &c., or in default shall surrender the defendant, &c, ■
    
      
      Thomas Beale died, and Thomas Todd, as .his administrator, is» sued a scire facias post annum et diem, against John Patterson, to January term, 1825, to which the defendant'appeared and pleaded nul tiel record.
    
    Issue being joined on this plea in the Circuit Court, Rogers, J., after argument, gave judgment for the defendant.
    
      Hale moved to quash,
    on the ground that an appeal from a judgment on the plea of nul tiel record, does not lie from the Circuit Court, The fourth section of the Circuit Court law specifies the particular case in which appeal lies, and this case is not included.
    
      Fisher, contra.
    
    The court will incline in- favour of an appeal on the merits in preference to the writ of error, which is an imperfect remedy. He then contended, that there was such a record. No matter how irregular the proceeding, there was a judgment. 2.Serg. Rawle, 107. 1 Serg. & Rawle, 492. 8 Serg. & Rawle, 157.
    
      Hale, in reply,
    referred to 1 Serg. & Rawle, 19, 22, and contended, that if Kelly had power to revive.the rule as to both, he had power to appeal as to both. 14 Serg. & Rawle, 226.
   The opinion of th’e court was delivered by

Gibson, C. J.

I consider this point, as having, in effect, been decided during the last term in Lancaster, wheti it was determined that-an appeal lies only where it is specifically given by the act of assembly; and judgment on the plea of nul fiel record, is not among the enumerated cases. By haying a- motion to set aside the judgment overruled below, a party might squeeze his case into the letter of the act; but he would be met here by a question, whe.ther the mdtion to set aside were the proper remedy.: If it were, a writ of error would be superfluous whenever the court below should be' willing to reverse its own judgment in a summary way; which would, in fact, be to allow' it all the jurisdiction that it could exercise on a writ of error, coram vóbis, which it has been determined does not'lievto an inferior court; and that would deprive the party who had obtained the,judgment, of his constitutional right to have the matter determined in a superior court. The present is no doubt a casus omissus; but the purposes of justice do not require us to violate the letter. In- cases like the present, the writ of error affords a remedy equally beneficial: I admit, that since the act of ■1806, a remedy provided by the legislature must be pursued in exclusion of remedies at the common law, and consequently'that an appeal-wherever it lies, must be pursued iii; exclusion of a writ of error; but it is assuming the very point in dispute, to-affirm that an appeal lies in the particular instance. As, then, the case is not within the terms of the act, and remedy may be had as fully as if it were, we are of opinion this appeal cannot be sustained; and it would- therefore be extra-judicial to express an opinion on the question intended to have- been submitted.

Appeal quashecL  