
    COZENS and ux against DICKINSON.
    ON CERTIORARI TO SALEM ORPHANS’ COURT.
    A certiorari may issue to remove proceedings of the Orphans’ Court in dividing lands; but it must be within three months after final decree.
    A motion was made to quash this writ:
    1st. On the ground that it was improvidently issued, it being allowed by a judge at his chambers; that a special certiorari, ought not to be allowed but on motion in open court, on a sufficeint cause made out by affidavit; but as the court gave no opinion on this point, it is unnecessary to say anything more on it.
    2d. That the act authorizing the partition of land under an order of the Orphans’ Court, Pat. 77, declared the report of the commissioners when confirmed by the court conclusive to all parties, and therefore that a certiorari could not legally issue for want of jurisdiction in this court over the subject matter.
    3d. That the Orphans’ Court was substituted in this State, in place of the ecclesiastical courts in England, to which no certiorari would lie; that the Legislature, sensible of this, had in certain cases in the Orphans’ Court act, authorized a certiorari to issue from this court; but in doing that, they had in express terms limited the time for bringing such certiorari to three months from the time of pronouncing the final sentence or decree of the court; that the conformation of the report of the commissioners [*] in this case, was about ten years before the certiorari issued.
    [384] To these objections the counsel for the plaintiffs answered, that the-general superintending authority of this court over all inferior jurisdictions, could only be restrained by plain negative words in a statute; that although the Orphans’ Court might be said in some sense, to be substituted in the place of the English ecclesiastical courts, yet that depended on the subject matter, of which the partition of land made no part; that there had been no final sentence or decree of the Orphans’ Court in the sense contemplated by the act, which spoke of parties to the suit, confining the provision in the 19th section of the Orphans’ Court act, to cases where actions existed, and had been finally determined; that the proceeding below could not be considered as an action, it was an exparte application against an infant, who was not cited to show cause against the partition, the whole proceeding therefore was exparte; that there could not be an action without parties; that it.appeared from the return sent up that the commissioners had exceeded their authority; they were appointed to divide the estate among three children,' and had given the whole to two, thereby disinheriting the third; that the conformation of the report of commissioners by the Orphans’ Coui't was a matter of course, no party being in court to oppose it; that the act comprehended a body of jurisdiction, independent of the case of partition of land, to which the provision and limitation in the 19th section applied, and not to that of the partition of land; but even if they did, yet that the plaintiff in this court was an infant; that the Legislature could not intend in this manner to sacrifice the rights of infants by authorizing an ex parte proceeding, and then preclude them from all remedy; that by the principles of law, infants cannot be guilty of laches, but are privileged. 1 Blac. Com. 493; 1 Swift, 318.
    
    The counsel for the defendants replied, that as to the infancy of the plaintiff, in whose right this writ is brought, [*] the first answer is, that the statute makes no exception in case of infancy, which is usual in cases where it is intended that they are to be privileged; besides, it is only in cases of infancy that the Orphans’ Court have jurisdiction of the subject matter, that is, the partition of land; now it would be strange that the very circumstance that gives the court jurisdiction, should create an exception to a general provision in the act, limiting a review of the proceedings. Yet even supposing there is an exception in favor of infants, yet the infant is only given a reasonable time after it comes of age to bring the action, which in the present case, under the equity of the act, ought not to exceed three months, or at most a year, yet years have elapsed since the plaintiff came [385] of age, before she brings her action. But they further contended, that a eertiorari would not lay at all; that the confirmation of the report of the commissioners by the court was conclusive to all persons concerned, that is, it is conclusive as to the subject matter, it was,not conclusive as to title, neither was a judgment in a writ of partition conclusive as to the title, but to the partition and nothing more; that the order of the Orphans’ Court, confirming the report of the commissioners; is conclusive, and ex vi termini, a final sentence or decree of that court: the words of the act do not confine the limitation to cases arising out of suits originating by process, nor to suits at all; but even if it did, there was a suit below, there were parties and a judge, and that was all lhat was necessary to constitute a suit or action; that a certiorari is not a writ of right, nor quasi a writ of right, but issuing under the sound discretion of the court; as the court could not give relief, the writ ought not to have been issued.
   By the Court.

If the Orphans’ Court act liad been silent as to writs of certiorari, it would have been matter of consideration for this court, whether allowable at all, and if allowable, in what cases; but the act itself has decided those questions, and laid down the rule, which is, that all final sentences or decrees of the court, except where an appeal is given to the prerogative, shall be subject to be removed into this court by certiorari. [*] We must consider an order of the Orphans’ Court, confirming the report of the commissioners appointed by them to make partition of land, as a final sentence or decree of that court; and if this certiorari had been moved for in three months after this sentence or decree had been pronounced, this court would have had full authority to allow the writ; but we think we are barred by the positive language of the proviso from allowing it after that time. Nor do we think that we should be justifiable in allowing infancy as an exception to the positive provisions of the statute, laying down a general rule without any exception, the more especially as it is infancy alone that gives the Orphans’ Court jurisdiction of the subject matter; should the court except infancy, they might with equal propriety also except coverture, and no one could say where this discretion would end. If this act authorizes proceedings hostile to the rights of infants, at the same time leaving them no remedy, although it is to be lamented, yet it cannot be corrected by this court, but affords a proper subject of legis' lative consideration. We therefore think that the writ of certiorari must be

Quashed.

Distinguished in Stevens v. Enders, 1 Gr 271, 278.  