6 Me. 50 | Me. | 1829
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
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sec. 3, provides that all laws, in force at the time of its adoption, should remain and be in force, until altered or repealed by the legislature.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.
• 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.