Colley v. Merrill, 6 Me. 50

Colley v. Merrill

6 Me. 50 | Me. | 1829

Weston J.

delivered the opinion of the Court at the ensuing term in Kennebec.

Before we proceed to other points made in this cause, it may be proper to consider the character of the bill of exceptions, which has been allowed under the seal of the Chief Justice.

Prior to the statute of Westminster the second, 13 Ed. 1. cap. 31, there was no mode of revising or correcting the direction or opinion of the presiding judge in the trial of a cause, in any matter of law, not apparent upon the record. By this statute, exceptions might be made to such opinion or direction, which it was made the duty of the judge to allow and seal, and thereupon such matter became part ol the record, and as such was examinable upon writ of error. Sir Edward Coke, in his commentary upon this statutp, 2 Inst. 427, says, “ albeit the letter of this branch seemeth to extend to the justices ol the Common Pleas only, by reason of these words, et si forte ad quei imoniam de facto justitiariorum venire facial dominus rex recor-dam coram eo, [and if the King, upon complaint made of the justices, cause tito record to come before him,] which is by writ of error into the King’s bench ; yet that is put but for an example ; and this *54act extendeth not only to all other courts of record.; for upon judgments given in them, a writ of error lieth in the King’s bench; but to the county court, the hundred, and the court baron, for therein the judges were more likely to err; and albeit of judgments given in them a writ of error lieth not, but a writ of false judgment in the court of Common Pleas, yet the case being in the same, or greater mischief, the purview of the statute doth' extend to those inferior courts.” Blackstone states, 3 Com. 372, “ This bill of exceptions is in the nature of an appeal; examinable, not in the court out of which the record issues for the trial at nisi prius, but in the next immediate superior court, upon a writ of error, after judgment given in the court below.” And in this opinion, he is fully supported by the practice of the English courts. Kensington, plaintiff in error, v. Inglis & al. 8 East 276, is a case in point. That was an action originally brought in the Common Pleas by the defendants in error. A verdict was found for the plaintiff below, under the direction of the Lord Chief Justice of the Common Pleas, before whom the cause was tried, to whom a bill of exceptions was tendered, which was allowed and sealed by him. These exceptions were not considered by the court of Common Pleas, who were in the possession of the record, although they must have been made a part of the postea, but were, after judgment, according to the course of judicial proceedings there, made the subject of examination by the King’s bench, upon a writ of error. Buller, in his Nisi Prius, 316, says, a bifl of exceptions can be used only on a writ of error; and-therefore where a writ of error will not lie, there cannot be a bill of exceptions. The same opinion is recognized in 3 Dane, ch. 100 art. 1, sec. 7. And in accordance with this principle, Mr. Dane further states in sec. 19 of the same article, that when allowed, the party cannot move in arrest of judgment on the point in the bill of exceptions; his proper remedy is a writ of error; and for this he cites 3 Lev. 297, and 2 Jones, 217. And we are satisfied that the bill of exceptions, under the statute of Westminster the second, is examinable only after judgment, and that upon writ of error. With regard to the writ of false judgment, which Sir Edward Coke thinks would lie in certain cases *55upon exceptions, no such process is known in our practice, nor have we any courts, to which it tnight properly be directed.

The counsel for the defendants contends that the exceptions before us were tendered and allowed, under the statute of Westminster the second. They are allowed under the seal of the Chief Justice j and in point of form may comport with what that statute required. It may however be worthy of grave consideration, whether this statute can be held any longer applicable to proceedings iii this court; since a more simple, summary, and less expensive mode of revising questions, which may be presented by bills of exceptions, has been provided by our own statute. The constitution of this State, art. 10, sec. 3, provides that all laws, in force at the time of its adoption, should remain and be in force, until altered or repealed by the legislature. The statute of Westminster made exceptions under it the basis of revision by a superior court. As this courtis supreme in its judicial capacity, its errors cannot be corrected by any other tribunal. But as in our practice, writs of error are brought returnable to this court, for the revisal of its own judgments, if we had no statute provision on the subject of exceptions, it might be strongly contended that they might be tendered under the statute of Westminster. But the legislature having made special provision for exceptions in the progress of trials in this court, and the mode by them prescribed being manifestly an improvement upon that of Westminster, avoiding expense and delay which are altogether unnecessary ; so far as that statute applied to this court, it may be held to be revised and altered by the legislature. It is true a new statute remedy does not usually abrogate a remedy at common law, and English statutes adopted here have been regarded as a part of our common law ; yet when any of the provisions in English statutes have become the subject of legislation here, our own enactments, although not excluding their operation in terms, as far as their purview extends, have been regarded as superseding those adopted from the mother country. However, upon this point we give no decisive opinion as if the English statute is still in force as it respects this court, and the hill in this case is considered as tendered under that statute, it cannot be made use of to arrest or delay the judgment claimed by the plaintiff.

*56From the course of the argument, it seems to have been understood that, on a bill under the English statute, any objection which might be raised from the evidence stated, although not taken at the trial, is open to the party excepting ; and that he is not confined to the point there raised, as he would be in exceptions under our statute. We do not find that this distinction is warranted by the authorities. In the argument of the case before cited from East, the counsel for the plaintiff in error attempted to urge a point not taken at the trial; but the whole court agreed that he was precluded from doing so, inasmuch as the point arose, if at all, out of the evidence stated in the bill of exceptions ; in arguing which the plaintiff in error was confined to the objections taken at the trial, and stated on the face of the bill, as had been decided in the house of Lords in the case of Rowe v. Power, 2 New Rep. 36, on a bill of exceptions from Ireland. The same opinion was held in Van Gordon v. Jackson, 5 Johns. 467, and Frier v. Jackson, 8 Johns. 507, the statute of New York using nearly the same words with the statute of Westminster. All questions in relation to the competency and effect of evidence must be raised at the trial, and before verdict. It is too late afterwards. Lanuse v. Barker, 10 Johns. 312. Jones v. Insurance Company of North America, 4 Dall. 249.

• Upon this view of the exceptions, under whatever statute tendered, the only point open to examination is in relation to the direction of the Chief Justice, touching the commissions paid to Greeley, and claimed as a fair charge against the plaintiff. The defendants are therefore precluded from many of the objections, which have been elaborately discussed in argument; whether taken on writ of error, or in the mode prescribed by our statute.

The defendants have had a continuance, which the statute allows upon exceptions, and their counsel has moved the court to grant a new trial, or such other relief, as to law and justice may appertain. Instead of suffering judgment to go against them, and bringing a writ of error, which is the remedy provided by the statute of Westminster, they have claimed the benefit of the statute summary mode. We shall proceed therefore to consider the exceptions, which we are warranted in doing, as having been tendered and allowed under our statute.

*57In regard to the commissions, whether they ought to be allowed or not, we think, must depend upon facts which the jury have not settled by their verdict. The defendants were bound to sell tho vessel, or cause her to be sold, to the best advantage. In doing this, they were not at liberty to incur any more expense than a prudent man would find necessary, in the discreet management of his own concerns. For such expense, if there he no usage in Portland or its neighborhood establishing a different rule, to which the parties may be presumed to have bad reference in tho contract, we are of opinion the defendants have a just claim to be reimbursed. As the jury have not passed upon the prudence or necessity of this expense, or upon the usage, if any exists, by which it may be adjusted, the verdict must be set aside and a new trial granted, unless the plaintiff will release to the defendants the amount of the commissions; in which case judgment may be rendered on the verdict.