
    The Ship Portland, Richard Peters, jun., who survived James R. Callender, claimant, against Lewis and others, executors of Philips.
    In Error.
    WRIT of error to the Common Pleas of Philadelphia c.ounty.
    By an act of assembly passed the 27th March, 1784, sect. 2. ships and vessels of all kinds, built, repaired, and fitted within this state, were declared to be liable and chargeable for all debts contracted by the masters or owners thereof, for or by reason of any work done, or materials furnished by any carpenter, blacksmith, mast-maker, &c. &c. for, upon, and concerning the building, repairing, fitting furnishing, and equipping such ship or vessel, in preference to any, and before any other debts due or owing from the owners thereof.
    The third section authorised all such tradesmen as were specified in the preceding section, to file a libel in the state Court of Admiralty, which then existed, against such ship or vessel, her tackle, furniture, and apparel; whereupon process was directed to issue and suqh proceedings to be had, towards the recovery of such debts, as are usually had in courts of admiralty for the recovery of seamen’s wages, &c.
    On the adoption of the federal constitution, the functions of the Court of Admiralty of this state ceased ; but in order to preserve to tradesmen and artificers the benefits of the above-mentioned law, the legislature passed an act on the 9th February, 1793, which vested, in the Courts of Common Pleas of the different counties, the powers in relation to this subject which formerly belonged to the Court of Admiralty ; directing the libel to bé filed with the prothonotaries of those courts, and the same proceedings to be had‘which were had in the former Court of Admiralty. Provided, “ That “ where, in any of the cases occurring under the said act or “ this act, questions of fact shall arise, an issue or issues shall “ be joined by the parties, their attornies, or counsel, under “the direction of the Court, and shall be tried by a jury of “ the county, forthwith, as in such courts is usual and customary in other disputed facts, unless the parties shall “ agree to refer the matters in variance by rule of Court, as usual in other cases in said Courts.”
    
      A writ of error lies to remove the proceedings in a case of attachment sued out against a vessel, by virtue of the act of 9th February, 1793, which vested in the Common Pleas the powers previouslybelongingtothe State Court of Admiralty,where judgment has been entered on the verdict of a jury, in the form of a common law judgment.
    A proceeding by attachment against a vessei under the act of 9th February, n 1793, is a civil action within the meaning of the act oi* 30th March, 1811, and after the passing of that law, ought to have been transferred from the Common Pleas to the District Court.
    The deposition of a witness, slated, that ee the clerk of W& C, came to the house of the plaintiff, P, and requested, that P would renew a certain note, and that P agreed to renew it, and did renew it to oblige them.” Held, that it was not necessary to produce the clerk of PV <k C, himself to prove, that he was sent by W St Cs but that, as he was their agent, his sayings aud doings might be proved.
    .The witness further stated, that P gave Júm a check, payable to WSt C, with orders not to deliver it until he saw that the note had been discounted by the Bank of the United States. Held, that the delivery of the check, and the giving of the orders, were one transaction, and that therefore the orders were admissible in evidence.
    
      Conformably to the provisions of these laws a libel was filed on the 15th August, 1809, by Benjamin Philips, in the Common Pleas of Philadelphia county, on which a writ of attachment returnable to September Term, 1809, issued against the ship Portland, of which Willing and Curwen and James R. Callender were stated to be owners. The libel stated, that he, Philips, had been employed as a .carpenter, to do work and furnish materials, &c. for the ship Portland, in the port of Philadelphia, which he did do and furnish, “ as “appears from the annexed account for work and repairs “ done, and materials furnished for the said ship, and that “ there is due to the libellant the sum of 600 dollars, which “ he is entitled to recover against the said ship; and the “ owners thereof, Willing and Curwen and Callender, refuse “ to pay him for the same ; wherefore he prays process, &c.”
    Annexed to the libel was an account, from which it appeared, that thei-e was a balance.of 600 dollars due to Philips on the day on which the libel was filed.
    On the 16th August, 1809, Richard Peters, jun. and James R. Callender entered into stipulations, that the owners should answer the demand; and at a subsequent period an answer was filed by Mr. Peters, as survivor of Callender, which stated, that the said Richard and James at the time of filing the libel and issuing the attachment, were the true and only owners of the said ship. The answer admitted, that the libellant did work and furnish materials to the amount of his bill; and that at the time the work was done and the materials were found, the vessel belonged two-third parts to Willing and Curwen, and one-third part to Callender. It averred, that after the work was done, &c. and before the filing of the libel, viz. on the 5th July, 1809, the said Willing and' Cur-wen sold their two-third parts' of the said ship, bonajide, for a good and valuable consideration, to the respondent, who at the time was ignorant of any claim by Philips against the ship, and who purchased her without any notice thereof. It denied, that 600 dollars were due to the libellant, but expressly averred, that in addition to the sums with which Philips had credited Willing and Curwen and Callender in the account, Willing and Curwen had given to Philips a promissory note, drawn by them for 600 dollars, dated February 17th, 1800, and payable- in 60 days after date, which was duly paid by them, and which, together with the other credits given by Philips, made up the whole amount of his bill. The respondent, therefore, prayed to be dismissed, &c.
    The replication denies,.that the said two-third parts of the ship were bona fide, and for a good and valuable consideration, sold by Willing and Curwen to the respondent, and avers, that he was not ignorant of the claim of Philips. It further states, “ that it is not true, that he, Philips, was fully « paid for the said work and materials in the said libel men- “ tioned, but at the time of filing the said libel, there was, « and is still due to him the sum of 600 dollars for work « done, &c. which he is entitled to recover against the said «ship, as in his libel mentioned,,and which sum was never “ paid or satisfied by any person, but still remains due and « unpaid.” It concludes with praying, that the vessel may tje condemned, &c.
    While this suit was pending, viz. on the 30th March, 1811, an act of assembly was passed, «to provide for the erec- “ tion of an additional Court in the city and county of Phila«delphiaP To this Court, which was called «The District “ Court for the city and county of Philadelphia,” power was given to try, hear, and determine all civil pleas and actions, real, personal, and mixed., where the sum in controversy should exceed one hundred dollars. The act, in the second Section, declares, that from and after the first Monday in June following, all suits and causes depending in the Court oí Common Pleas of the city and county of Philadelphia, where the sum in controversy exceeds one hundred dollars, shall be. •transferred to the said District Court, there to be heard, tried and determined, and the original jurisdiction of the said Court of Common Pleas, in all civil actions where the sum in controversy exceeds one hundred dollars, shall thenceforth cease and determine.
    On the 4th April, 1814, the cause was tried in the Common Pleas, before a special jury, who having found for the libellant, 776 dollars 90 cents, and 6 cents costs, the following entry was made on the record. “ April 4th, 1814. Judg- “ ment Nisi.”
    
    On the trial the deposition of William Brackley was offered by the libellant, to parts of which the respondent objected, but the Court overruled the objection. The parts objected to were in these words. “That on the 4th May, 1809, the “ clerk of the defendants, Willing and Curwen, came to the “ house of the plaintiff, and requested that the plaintiff would “ renew the said note, that the plaintiff agreed to. do it to “ oblige the defendants, and accordingly the deponent drew “ the note hereunto annexed, marked A.”
    This was a note given by Willing and Curwen to Philips, for 606 dollars 46 cents, dated May 5th, 1809, and payable in sixty days.
    Again. “ But he (deponent) had express orders not to give “ the check, unless the note was discounted.”
    On the removal of the record to this Court, eight errors were assigned in the proceedings below,
    1. The Court of Common Pleas had not jurisdiction of thecsuse. It ought to have been tried and decided in the District Court for the city and county of Philadelphia.
    
    2. The jury have assessed damages which they had no authority to do. If any thing were due from the respondent to the libellant, the Court ought to have ascertained and fixed the amount.
    3. There was no issue directed by the Court.
    4. There was no issue joined at all :■ or if any, not on any point material to the case,
    5. The replication is uncertain and argumentative, and not sufficiently direct and positive. It. does not admit or deny, or in any way reply to the most material allegation in the respondent’s answer, viz. that of an additional payment by Willing and Qurwen, besides the credits admitted by the libelIfint. ‘
    
      6. If there be any issue, or issues joined, it does not appear on which of them the jury passed, nor for what cause they have assessed damages against the respondent.
    7. Those parts of the deposition of William Brackley which were objected to, as stated in the bill of exceptions, ought not to have been admitted in evidence.
    8. Judgment is rendered for the libellant, whereas it ought to have been for the respondent.
    The argument was conducted by Wallace in support of these exceptions, and against them by Broxvne and Sergeant, who, as a preliminary question, also contended, that as the proceedings in this case, were hot according to the course of the common law, a writ of error would riot lie; for which they cited, 2 Bac. Abt. Error A, 466. Ruhlman v. Commonwealth.
      
       Miller v. Miller,
      
       3 Mass. Rep. 187. Id. 305.
    Wallace,
    against this position, referred to the act of 1722, sect. 9. 1 8m. Laws, 138, and the act of 13th April, 1791. 3 Sm. Laws, 28.
    
      
      
        а) Purdon's Digest, 39. 2 Sm. Laws, 95.
    
    
      
       Id. 40. 3 Sm. Laws, 89.
    
    
      
      
         Purdon’s Digest, 332.
    
    
      
       5 Binn. 24.
    
    
      
       3 Binn. 30.
    
   Tilghman C. J.

The greatest 'difficulty which I have found in this case has been to determine, whether the proceedings have been properly removed by writ of error. It is a proceeding in rem. by a ship carpenter against the body of the ship for work done and materials found! As long as we hád a state Court of Admiralty, suits of this kind were brought in that Court by virtue of an act of assembly, passed the 27th March, 1784. But the Admiralty jurisdiction of the state having been taken away since the adoption of the present constitution of the United States, the same proceeding against the ship which formerly took place in the Court of Admiralty, is now pursued in the Court of Common Pleas, by virtue of the act 9th of February, 1793. The whole? proceedings are different from the course of the common law, except, that the trial of disputed facts-is by jury. But then the facts being ascertained, the decree and execution are according to the civiblaw. Had there been a decree in this case, in the manner that there ought to - have been, I should have thdught that a'writ of error did not lie. But it rather appears, that the Court intended to give a common law judgment, although it cannot be said, with certainty, what the judgment is, for after the entry of the verdict, in which the jury find for the libellant seven hundred and seventy-six dollars and ninety cents, and six cents costs, there is a short minute of judgment nisi, and no more. I am willing to consider this as a judgment, on which a writ of error lies, rather than put the parties to thp delay and expense of a removal in another form, especially as the proceedings must be reversed in whatever form they are brought before us. While this suit was depending, in the Court of Common Pleas, and before the trial by jury, an act of assembly was -passed (30th March, 1811,) by which a new Court was established by the name of “ The District Court for the, city and county of Phila- delphia.” This Court had jurisdiction of “ all civil pleas u and actions, real, personal, and mixed, where the sum id “controversy exceeded one hundred dollars;” and it was directed by the. act, that, from and after the first Monday in June, 1811; all suits and causes depending in the. Court of Common Pleas of the city and county of Philadelphia, where the sum in controversy exceeded one hundred dollars, should be transferred to the said District Court, there to be heard, tried, and. determined,, and, the original jurisdiction of the said Court of Common Pleas, in all civil actions where the sum in conti'oversy exceeded one hundred dollars, was thenceforth to cease and determine. The sum in controversy in this case exceeded one hundred dollars, and the action was certainly a civil one, though not in the common law form, so that the case falls dii'ectly within the words of the law, and I think directly within its intent, for I can see no- reason for a distinction between this and the usual common law actions. The,District Court was to have no criminal jurisdiction, but as to civil actions the only criterion of jurisdiction was the value of the matter in controversy. The Court of Common Pleas ought, therefore, to have sent the recox'd to the District Court, and all their proceedings after the first Monday in June, 1811, were erroneous. The plaintiffs in error have, assigned several errors, besides the want of jurisdiction. It is unnecessary to enter into the consideration of such of them -as concern the pleadings and the joining of the issue, because i presume the pleadings will be de novo in the District Court;.but as the same exception to the evidence of Williani Brackley, which was taken in the Court of Common. Pleas, may probably be taken again in the District Court, it may be " proper to give, an opinion on it now. Willing ancl Curwen had given their note to Benjamin Philips for six hundred dollars, the balance of his account against the ship Portland, and the respondent in the Court of Common Pleas averred, that this note had been paid, and the account discharged. On the other hand, the libellant alleged, that the note had not been paid but renewed., by another note of the said Willing ,and Curwen, which renewed note was discounted in the Bank of the United States, and the money obtained from the Bank on the discount paid into the hands of the said Willing and Curwen by the said Philips, so that the balance of his account against the ship remained still unpaid. To prove this, the deposition of William Brackley was given in evidence, who swore, “ that the clerk of Willing and Curwen “ came to the house of Philips, ancl requested that Philips st would renew the note, and that the said Philips agreed to •“ renew it, and did renew it to oblige them.” This was objected to as hearsay evidence. The clerk, himself, it was said, ought to have been produced to prove, that he was sent by Willing and Curwen. I cannot perceive how this was hearsay evidence ; it had been proved, that the person who brought the new note was the clerk of Willing and Curwen, consequently he was their agent, and therefore his sayings and doings were matters of fact proper to be laid before the jury. The trusting him with the new note, signed by Willing and Curwen, was of itself sufficient proof of his authority to act for them so far as concerned that note. Another part of Brackley’s deposition was objected to, viz. his saying, that Philips gave him a check payable to Willing and Curwen, but ordered him not to deliver the check until he saw that the note had been discounted in the Bank of the United States« The objection is, that this was the declaration of the libellant, and therefore not evidence. But this also was matter of fact. The delivery of the check by Philips to his clerk, Brackley, and the orders accompanying that delivery are all one transaction. The reason for giving.this order is explained in another part of the deposition. Unless the note had been discounted, Philips would not .have had money ip bank to answer his check. The whole evidence tended to., shew, that Willing and Curwen. received the money raised upon their note, and therefore, although they paid the note-when it fell due, no part of it was applied to the discharge of;Philips’s account against the ship Portland. There, is no f°rce> therefore, in the objection to the deposit!?*,.. But for defect of jurisdiction in the Court of Common Pleas, I am of opinion? that the judgment should be reversed. • The record must be sent back to the Court of Common Pleas, with directions to transmit the same to the District Court, where the cause is to be heard, tried, and determined.

Yeates J.

A preliminary question has been raised by the defendants’ counsel, that a writ of error will not lie in this case. While the jurisdiction continued in.the Court of Admiralty, as to vessels attached by any carpenter, or other workman employed in building, repairing, fitting, furnishing, or equipping such vessel, under the act of 27th March, 1784, I should hold, that a writ of error was- not sustainable. But when the state Court of Admiralty ceased to exist, and the jurisdiction in this particular was transferred to the Courts of Common Pleas, and questions of fact stated in writing arose, whereon issues were formed which come to be tried by a jury of the country, as in such Courts was usual and customary in other disputed facts, I conceive that a. writ of error is the proper remedy for the party supposing himself to be aggrieved. The attachment in such cases merely serves to bring in the parties to the suit. . The record and the parties are before the superior Court, who can do complete justice,. if any error has occurred which demands their interposition. In Drawne v. Stimpson, 2 Mass. Rep. 441. It was said, that although the proceedings in the Court of Common Pleas were not according to the course of common law, and therefore a writ of error was not the proper writ for the removal of the cause into a superior Court, yet the Court proceeded to quash the proceedings below, the record of the parties being before them by writ of error. Should a record be re- . moved by certiorari, when it ought to be by writ of error, the Court cannot, if there be error, render the right judgment. And in a subsequent case, Vandusen v. Comstock, 3 Mass. Rep. 187, a writ of error was considered as a certiorari. The defendants’ counsel have likened this case to proceedings in cases of divorce, and have cited Miller v. Miller, 3 Binn. 30, wherein this Court determined, that a writ of error would not lie. The answer is, that the third section of the act of 2d April, 1804, expressly directs, that, after a final sentence, either party may appeal to the Supreme Court, in such a case.

They have also cited Ruhlman and others v. Rempublicam, 5 Binn. 24, wherein the Court quashed a writ of error to the Quarter Sessions, upon an appeal by supervisors of the roads, from a summary conviction by a justice of the peace, for neglect of duty. .It is true, that this Court recognised the distinction laid down in Grainvelt v. Burwell, 1 Ld. Raym. 469, (S. C. Carth, 494. Comy. Rep. 80. 1 Salk. 144. 263,) as to a Court newly instituted, which is impowered to proceed summarily, by methods unknown to the common law, and one under different circumstances, as to a writ of error lying on their judgments. But stress is also laid on the plain provisions of the act of 6th April, 1802, sect. 12, that the Sessions shall take such order on the appeal as to them shall appear just and reasonable, and the same shall be conclusive, 3 Sm. Laws, 517. Such order the Chief Justice observes, may be very different from the course of the common law. 3 Binn. 27. The nature of the case made a speedy decision necessary: the people would suffer while the cause was delayed. I freely admit, that the appropriate mode of reviewing civil law proceedings is by appeal to a superior tribunal; although while the jurisdiction respecting these liens remained in the state Court of Admiralty, no provision was made whereby a party supposing himself aggrieved, might entitle himself to a rehearing. But when the jurisdiction was transferred to the Courts of Common Pleas, on the state Court of Admiralty ceasing to exist, the general powers of the Supreme Court would necessarily be called into action, and hence it is, that we find a bill of exceptions sealed in this ease. It has been urged, that an appeal would be more conducive to justice than a writ of error, inasmuch as the case would be open to new proof on an appeal. But I cannot think this observation applicable, when the controverted facts have been decided by the general verdict of a jury. In such instances the only remedy which the party has, is by an application for a new trial to the Court who tried the cause, and and who we are bound to presume would exercise a sound discretion in their decision. Error cannot be assigned for the inferior Courts not having awarded a new trial, nor can yje try the cause ourselves by a jury. Now the proceedings originated by attachment in. the Common Pleas, which wás ^ss°Ned by the stipulation entered into upon service of the writ, and the vessel discharged therefrom under sect. S. of the act of 1784. The judgment is not, therefore, in my apPre^ens'on 'in rem' hut for the precise sum found by the jury in damages, and the stipulation affords a complete remedy for the recovery thereof. I do not feel the force of several of the exceptions taken by the plaintiff’s counsel. I view the libel and answer which have been filed as a statement or declaration and plea in substance, wanting no necessary form. The libel states, that the ship owners were indebted to Philips in 600 dollars for work done and materials provided, to which is annexed a regular account of the debt and credits. The answer admits the work to have been done and the materials provided, but asserts that the 600 dollars was duly paid by the owners, by a certain promissory note, dated 17th February, 1809, which was discharged afterwards. The replication contains a flat denial of this fact, so that the parties were at issue on the plea of payment, which ,cannot be said to be immaterial. The issue thus joined by the counsel on both sides, on which the parties went afterwards to trial, must be presumed to have been done under the Court’s direction. The jurors, as is usual and customary in disputed, cases, ascertáined the fact, and assessed the damages. I see no reason whatever, why they were bound to state the facts specially and submit the legal inferences to the Court. If they did wrong, the proper remedy was by application to the Court to review what had been done. The deposition of William Brackley appears to me to be correctly legal. He was the clerk of Willing and Curzven, who owned two-thirds of the Portland at the time, and was sent by them to Philips with a request, that he would renew a particular note. Whatever they said or did, as ship owners, was proper evidence against Mr. Peters, who claimed under them. The views of Philips in agreeing to the proposition of Willing and Curzven, and the grounds on which he proceeded, became material for the consideration of the jury, when they were called to decide on that particular fact.

But the exception to the jurisdiction of the Court of Com.» mon Pleas who tried the cause, appears to me fatal. They' had jurisdiction in the first instance, when the attachment issued returnable to September Term, 1809, but by the act of 30th March, 1811, (5 Sm. Laws, 224, sect. 2.) the original" 'urisdiction of the Court of Common Pleas of the city and county of Philadelphia, in all civil actions where the surtí in controversy exceeded 100 dollars, ceased and determined. Such causes were directed to be transferred to. the District Court, established by that law. Prior to the first Monday in June, 1811, the controversy appeared on record, that Philips claimed 600 dollars, and Mr. Peters, as the surviving owner of the ship, denied the existence of that debt, so that the case was brought-within the words of the act. The District Court was formed for the trial of issues in civil actions, where the sum in controversy exceeded 100 dollars. In cases of divorce and habeas corpus, under our act of 1785, there is no sum in controversy, and therefore th.e District Court exercises no jurisdiction. Those proceedings are conducted in a sum-mary manner before the Court. It is a matter of daily practice, that the District Court hears applications of artificers and material-men as to their liens on buildings. And upon my inquiry of the President of that Court, I received information, that in one case at least, he had determined in the case of a workman, under the law in question, where his demand exceeded 100 dollars.

I am of opinion, that the judgment of the Court of Common Pleas be reversed, for defect of jurisdiction, and that the record be remitted to the District Court for: trial,

Brackenridge J. concurred.

Judgment reversed.  