Hawley v. Parrott

10 Conn. 486 | Conn. | 1835

Bissell, J.

The principal question presented by this re- , , ¶ # and, indeed, the only one, which has been insisted on, m the argument, is, whether an action may be brought to an adjourned court, when the court is adjourned to a distant time.

It has been objected, by the defendants’ counsel, that the court is holden, and is described as holden, only on the first day of the term ; and that an adjournment to a distant time, does notvary or affect the principle; that it is still a continuation of the statute term ; that the court is still considered as holden on the first day only; and that there is no distinction, in this respect, between an adjournment to a distant time and an adjournment from day to day.

It is true, that a court is described as sitting on the first day of the term only ; and that this, and all the successive days of the term, make but one day, in contemplation of law. But this is a legal fiction ; and whenever the purposes of justice require it, this fiction may be contradicted, and the particular day, upon which an act was done, may be shown. Cutler v. Wadsworth, 7 Conn. Rep. 6.

There is also a well settled distinction between an adjournment at a distant time, and an adjournment from day to day. The latter is a power, necessarily, incidental to every court. But the legislature seem to have thought, that some provision on their part was necessary to authorize the courts in this state to adjourn to a distant day. Accordingly, at the revision of 1672, it was enacted, that the judges and justices of the respective county courts should be empowered to adjourn their respective courts, upon any necessary occasion, as they should see cause, to some distant time : and the same enactment has been continued through the subsequent revisions of the statutes. In 1720, an act was passed empowering the judges of the county court in New-London county to adjourn to, and hold their adjourned courts either at Norwich or New-London, as they should judge convenient. In 1784, it was enacted, that any special or adjourned court, in the county of Fairfield, might be holden either at Fairfi.eld or Danbury, as the judges should order and determine. And in 1795, an act, containing similar provisions, was passed with regard to the county of Middlesex.

In pursuance of these salutary provisions, adjourned courts have been holden, it is believed, in all the counties in the state ; and, in most cases, at regular and stated periods. And so far as we have been able to ascertain, these adjourned terms, (as they have been denominated,) have been attended by nearly, if not all, the incidents of a statute term. Causes have been carried forward to them, as from term to term. New juries have been summoned, and bills of costs taxed, in the same manner, as though the term had been prescribed by law. And what has a more important bearing on the question now before us, it has been the uniform practice, for more than half a century, to bring actions to these adjourned courts, in the same manner as to the statute terms. And this practice, so far as we have been able to ascertain, has been acquiesced in, and unquestioned. Were this practice, now, for the first time, sought to be introduced, we might well hesitate before we gave it the sanction of this Court. We feel the full weight of the objections, which have been pressed upon us, by the defendants’ counsel; and that it is exceedingly difficult to reconcile them with the theory of our law. But we think, the practice has been too uniform, and too long continued, now, to be disturbed. By declaring it to be illegal, we should, doubtless, shake the foundations of many titles, and impair the confidence of the community in the stability of judicial proceedings.

It is readily admitted, that no practice, however uniform and extensive it may have been, can controul the express provisions of a statute. But the practice we are considering does not contravene the explicit provisions of any law. For although the statutes empowering courts to adjourn to a distant time, do not expressly authorize the bringing of actions to such adjourned courts ; yet neither do they forbid that actions should be thus brought. And although practice cannot controul the law, yet where it has been long continued, uniform and unquestioned, it affords high evidence of what the law is. Upon the ground of such a practice, we are of opinion, that the plaintiffs’ replication is sufficient; and would so advise the superior court.

In this opinion the other Judges concurred.

Judgment for plaintiffs.