
    DENNIS COUGHLAN vs. MARY A. POULSON AND OTHERS.
    At Law. —
    No. 12360.
    Where issues are sent by the orphans’ court to the special term to be tried by a jury, and a verdict thereon rendered, a motion for a new trial on a bill of exceptions will be heard at the general term in the first instance.
    STATEMENT OP THE CASE.
    This was a motion to dismiss, on the ground that no appeal lies in a case of this kind. The facts upon which the motion is made are found in the record, from which it appears that the will of the late John Keefe was filed in the office of the register of wills, March 24, 1874. In it, the plaintiff was appointed executor, and the defendants are the heirs of the deceased, and opposed the probate of such will, on the ground that the testator was not capable of making a contract or deed at the time of the execution of the paper-writing purporting to be the last will of said John Keefe. Thereupon, the justice holding the orphans’ court ordered the following issues to be sent to the circuit court for trial by a jury, to wit:
    “ First. Whether the paper-writing filed in the office of the register of wills on the 24th day of March, A. D. 1874, purporting to be the will of John Keefe, deceased, is the last will and testament of the said John Keefe "1
    “Second. Whether the said paper-writing was obtained under undue influence ?
    “Third. Whether the said John Keefe, at the time of the execution of the said paper-writing purporting to be his last will, was of sound and disposing mind, memory, and understanding, and capable of executing a valid deed or contract ?
    “And it is further ordered and decreed that at the trial of said issues, the said Dennis Coughlan shall be plaintiff and the said Mary A. Poulson defendant.”
    On the trial of these issues the plaintiff excepted to the ruling of the court in regard to evidence, and also excepted to the instructions which were given to the jury at the request of the defendant. The verdict was in favor of the plaintiff upon the first and second issues, and upon the third issue was in favor of the defendant. The case is here on a motion for a new trial upon a bill of exceptions, and the motion to dismiss is based upon the idea that this is not a case in which a bill of exceptions can be taken.
    The Maryland testamentary act, 1798, eh. 101, subch. 15, sec. 17, and subch. 8, sec. 20, is in force in this District, and contains the power and authority given to the circuit court to try issues sent to it from the orphans’ court. The orphans’ court may direct issues to be tried in that court; and the court of law shall have power to direct the jury and grant a new trial as if the issues were in a suit therein instituted, and a certificate from such court, or any judge thereof, of the verdict or finding of the jury, under the seal thereof, shall be admitted by the orphans’ court to establish or destroy the claims, and the orphans’ court shall give judgment on the finding of the jury.
    
    Section 806, Eev. Stat., directs that a motion for a new trial on a bill of exceptions shall be heard in the first instance at a general term ; and the plaintiff contends that this law is axiplicable to the present case, inasmuch as the court trying the issues can grant a new trial the same as in any other •suit.
    
      W. D. Davidge and Reginald Fendall for plaintiff:
    It will be contended by the defendant’s counsel that this court has not the power to hear and determine the bills of exceptions or to grant a new trial. We hold that the power of this court to grant a uew trial upon issues sent from the orphans’ court is expressly conferred by statute. The 9th section of the act of March 3, 3873,12 Stat., 762, requires a motion for a new trial on a case or bill of exceptions to be heard in the first instance at a general term ; and the 100th rule of practice of this court declares the same. The testamentary act (1798, chap. 101, subchap. 15, sec. 17) authorizes the orphans’ court to direct issues to be made up and sent to a court of law for trial, aud that the power of the court of law, and proceedings relative thereto, shall be as hereinbefore directed respecting the trials of issues; and sub-chapter 8, section 20, declares that the court of law, by which issues directed from the orphans’ court are tried, shall have power to grant a new trial.
    
    
      Bradley & Duvall for defendant:
    The case below was not one in which a bill of exceptions could be taken. In 2 Tidd’s Practice, 865, it is said, “ where a writ of error will not lie, there can be no bill of exceptions; ” and he cites 1 Salk., 284; Bull. N. P., 316; 1 Black, 679; Cowp., 501. Buller says: “A bill of exceptions is only to be made use of upon a writ of error, and therefore where a writ of error will not lie there can be no bill of exceptions.” 2 Archb. Prac., 187. “Also, as a bill of exceptions can only be available on a writ of error,' consequently where a writ of error will not lie there can be no bill of exceptions.” Hardw.,, 219. No judgment could be entered in the circuit court, and no writ of error can lie in any case in which a judgment could not be entered up.
    The act of Congress, 12 Stat., 764, sec. 8, provides for bills of exceptions upon the trial of causes at law. But it must be in a cause On trial. An issue sent by the court of chancery or by the orphans’ court to be tried in a court of law is a special, qualified jurisdiction, and the court to which such an issue is sent from the orphans’ court to be tried can exercise no other or greater jurisdiction than is specially conferred by the statute. It — that is, that court — has power to grant a new trial. But it does not, in such a case, acquire any power to sign a bill of exceptions; for it has no power to render judgment. In the same section it is further enacted that, “ The justice who tries the cause may, in his discretion,, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages.” “ When such a motion is made and heard upon the minutes, an appeal to the general term may be taken from the decision, in which case a bill of exceptions, or case, shall be settled in the usual manner.” That is not this case. But section 9 provides-that “ a motion for a new trial on a case or bill of exception» * * * shall be heard in the first instance at a general term.” This brings us back to the original question whether a bill of exceptions will lie except on the trial of causes in which judgment can be entered and a writ of error sued out.
    The case of Van Ness vs. Van Ness, 6 How., 62, 67-69, is in point. The opinion of Chief-Justice Taney exhausts the question. Some doubt is sought to be thrown on it by the language of the same court in Brown vs. Wiley, 4 Wall., 172. This is a dictum not necessary to the decision of the cause, and the point was not involved in the questions decided by the court. But this does not shake the ruling in Van Ness vs. Van Ness, that the circuit court could not enter any judgment, and that no writ of error could lie in such a case. The meaning of this 9th section is to be ascertained by reading it in connection with the preceding sections, and taking the term “bill of excei>tion” in its well-known sense and application. The circuit court, therefore, had not, under those issues, a cause to try, but was limited to the simple duties of presiding over, and directing the trial of those issues by a jury, and certifying the finding to the orphans’ court for its action, and, in the discretion of the judge holding the court, power to grant a new trial, without any provision by law for a revision of his decision.
   Cartter, Ch. J.,

delivered the opinion of the court:

If we were guided in this case by the technical rules of common-law practice, viz, that there can be no bill of exceptions where a writ of error will not lie, we would undoubtedly grant this motion to dismiss for want of jurisdiction. Such a determination of the question would leave an important and increasing class of interests without any relief, where there had been a mistake at the trial of the issues. We think, however, that the proper remedy has been provided. The act of assembly of Maryland, which is the law of this District, expressly authorizes the court of law trying issues from the orphans’ court to grant a new trial; and the act of Congress under which this court is constituted declares that a motion for a new trial, on a case or bill of exceptions, shall be heard in the first instance at a general term. It seems to us, therefore, that the motion for a new trial is properly here under the statute; and, so far as this class of cases is concerned, they are now entitled to the same influences of justice as in other cases where a mistake has been committed at the trial.

The motion to dismiss is overruled.

Olin, J.:

I am also of opinion that the statute which requires a motion for a new trial on a case or bill of exceptions to be heard here in the first instance is applicable to this case. It is quite common that great interests are involved in these issues, and there should be some mode of reviewing the ruling of the court where the judge has fallen into error or mistake. The finding of the jury is by the act of assembly made final and conclusive upon the orphans’ court, and this is a controlling reason why the verdict should be founded upon the justice of the case. I think the motion should be overruled.

MacArthur, J.:

We have been referred to the case of Van Ness vs. Van Ness, 6 How., 62; but that case only decides that the finding of the jury upon an issue sent from the orphans’ court for trial to the late circuit court of this District and the order certifying such finding is not a final judgment upon which a writ of error lies to the Supreme Court of the United States. Since that adjudication was made the circuit court has been abolished, a,nd the present supreme court established in its place. By the 9th section of the act making this change, it is enacted that a motion for a new trial upon exceptions shall be heard in the first instance at a general term. The most ample provision is also made for taking exceptions on the trial of any cause. As the law stood when Van Ness vs. Van Ness was decided, the motion was made before the circuit judge who presided. Now it is heard on exceptions at the general term, where all the judges sit in banc, and there is no other power to hear such a motion when made upon exceptions. The statute absolutely transfers the hearing of such a motion from the special to the general term, and there is no discretion left to the court on this point. To deny this privilege is therefore to destroy the right to ask for a retrial where an exception has been taken.

In Brown vs. Wiley, 4 Wall., 165, this construction of the statute was incidentally sustained. In that case issues from the orphans’ court were tried at a special term before a single justice, and a motion for a new trial on exceptions was heard in the first instance at the general term, as prescribed in section 9, and overruled.

An order was entered by the court directing the finding of the jury to be certified to the orphans’court. The supreme court held that a writ of error would not lie, as such an order was not a final judgment. But the practice in that case in this court was identical with that pursued in the case at bar. In both instances the motion for a new trial was heard at the general term, and the court appear to recognize and sanction the practice. The chief-justice, who delivered the opinion, in comparing the law as it was at the time of the Yan Ness case and under the act now in force, observed: “ The only real difference between the two statutes is that the latter gives an appeal from the decision of a single judge at a special term on a motion for a new trial to the whole court at general term, or secures an original hearing of the motion in general term. This is an advantage to the unsuccessful party not formerly enjoyed, but it makes no changes as to re-examination upon appeals or writs of error in this court.”

This language plainly intimates that the construction of the statute is that which we all give it in this case.

I concur in the decision overruling the motion to dismiss.  