Dudley v. Butler

| Superior Court of New Hampshire | Dec 15, 1839

Upham, J.

The jurisdiction of laying out highways from town to town was formerly vested in the court of general sessions of the peace, and on the abolishing of that court this power was transferred to the court of common pleas. It is, perhaps, unnecessary to determine how far the court of general sessions was a court of record, within the meaning of the term, as holden in England. Mr. Justice Biackstono says that “ all courts of record are the king’s courts, in right of his crown and royal dignity, and therefore no other court has authority to fine or imprison; so that the very erection of a new jurisdiction, with power of fine or imprisonment, makes it instantly a court of record.” 3 Black. Com. 25. The power of fine and imprisonment always existed in the court of general sessions. The power of the court, so far as its jurisdiction extended, was the same in its nature, but of higher authority, than that exercised by individual justices of the peace; and the judgments of a justice of the peace have been holden by our courts to be common law judgments, and error will lie to reverse them. 2 N. H. Rep. 208, Huse vs. Grimes.

But it is contended, that the peculiar nature of the jurisdiction of the court in laying out highways is such that no common law judgment is rendered, and that in such cases the doings of the court are rendered effectual, not by a judgment, technically so called, but by orders to be executed in a summary way ; such as orders for the removal of paupers, granting of licenses, and other acts of a like nature, where the judges sit rather as ministerial officers than as a court of record. But the statute clearly makes a distinction between such mere orders, and the proceedings of the court relative to highways. The court was originally empowered “ on petition to them, to lay out, if they thought proper, highways from town to town, and cause a record of the same to be made.''’ 1 Laws N. H. 385, (ed. 1815) ; and the requirement as to the record continues to this time.

It can hardly be contended, under these circumstances, that this record of the judgment of the court, as to such laying out, should have less verity, or be required to be proved differently from any other judgments of the same court, as to matters clearly within their common law jurisdiction. A full record, required to be kept by statute, must be equally binding with airy mere common law judgment. In modern practice, at least, it has been so holden ; and the laying out of highways has been proved in the same manner, and the record is regarded as entitled to the same verity, as any other judgments of the court; and we think the practice is right in this respect.

If this be so, the argument that the first entry, or memorandum made by the clerk, is the true and sole record of the proceedings of the court, cannot be sustained. Such minutes are merely to guide the clerk in the subsequent making up of the record. “ Records are complete as soon as they are delivered into court engrossed upon parchment, and become permanent rolls of the court. Then, and not before, a copy becomes evidence.” 1 Stark. Ev. 245.

The original memorandum made by the clerk in this case is no evidence. The extended record is the sole evidence of the doings of the court, and has the absolute verity of a record. If there has been any mistake in making up the record, the court, on application, will direct an amendment, and it can be altered or controlled in no other manner. 3 Bl. Com. 25.

The decisions of the court of probate, though not a court of record in the common law sense of the term, can be proved only by the record of its proceedings. 3 N. H. Rep. 309, Judge of Probate vs. Briggs; and I have no reason to doubt that where an extended record is made up by the judge of probate, the court would hold that to be the true and sole record.

The record of the court in this case, once received, shows clearly that the laying out of the highway was on condition, and that condition was that the expense of the highway should be in part paid by private contribution. It has been already settled, on mature consideration, in the case of Dudley vs. Cilley, 5 N. H. Rep. 558, that no court has authority to make such donations the condition upon which a highway is to be laid out, and that a highway laid out upon such condition is void.

Authorities, said to be of a different tenor, have been cited by the counsel for the plaintiff, which are more recent than the case of Dudley vs. Cilley, or were not adverted to in that decision. 8 Pick. R. 228, Parks vs. Boston; 16 Ditto 217, Copeland vs. Packard; 1 Greenl. R. 125, Jewell vs. Somersett; 2 Ditto 50, Partridge vs. Ballard. The Massachusetts authorities, however, are clearly distinguishable from this case. The donations there given were not made a condition of the adjudication of the court; and the court held that, unless such clearly appeared to be the case, the laying out of the highway would be valid; leaving the necessary implication that a laying out on such condition would be void. These cases do not overrule the earlier Massachusetts authorities cited in Dudley vs. Gilley. The cases from Green-leaf depend upon particular provisions in the Maine statutes, and are not Of general application. We hold fully to the decision in Dudley vs. Cilley, that no offer of donations by the petitioners, to aid in making a highway, ought to influence the decision of the court, nor can the payment of any sum of money by the petitioners be made the condition of laying out a highway.

As a necessary result from this decision, a note given on account of any intimation of the court that such provision made by the petitioners would induce a laying out of the highway, would be void. It would be given as the condition of a favorable judgment, which judgment so rendered would be illegal.

The jury have found by their verdict that the note was given on such intimation. A declaration by a member of the court, not designed to express the views of the court, but merely the individual impression or suggestion of the person speaking, would clearly not be binding on the court. No declaration made by one member of the court coukbbind the court, unless they consider and understand the remark to be made as expressing the opinion of the whole court. We think the charge given in this case must have been so understood and received, and that there is no ground to believe that there has been error or injustice done in this respect.

Judgment for the defendant.