Etter v. Curtis

7 Watts & Serg. 170

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1844
• Status: Published

Opinion

Per Curiam.

— judgment against an infant in a court of record cannot be abated collaterally by the infant as a judgment may by a stranger where it is collusive, the remedy between the parties being by writ of error, and the fact of infancy being triable per pais instead of by inspection. No writ of error lies, however, to remove the judgment of a justice of the peace; and a certiorari would correct no more than errors apparent on the face of it. What, then, does necessity require ? The Common Pleas must either try the fact of infancy by depositions on a certiorari, or allow the infant to plead it to a scire facias, or an action on the judgment; else there must be a failure of justice. We prefer the course which is less anomalous, and more consistent with the constitutional provision for trial by jury. We must say, therefore, that the defence ought to have been sustained.

Judgment reversed, and venire de novo awarded.