Cozens v. Dickinson

3 N.J.L. 507

• Court: Supreme Court of New Jersey
• Decided: February 15, 1809
• Status: Published

Opinion

By the Court.

If the Orphan’s Court Act had 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 Court, shall be subject to bo removed into this Court by certiorari. [*] We must consider an order of the Orphan’s Court, confirming the report of 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 wc 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 Orphan’s 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 he lamented, yet it cannot he corrected by this Court, but affords a proper subject of legislative consideration. Wc therefore think that the writ of certiorari must be

Quashed.