Thompson v. Hatch

20 Mass. 512 | Mass. | 1826

Parker C. J.

delivered the opinion of the Court. We r have considered whether the rule of the Court of Common Pleas allowing four days for filing pleas in abatement and demurrers to declarations, notwithstanding the jury may have been previously empannelled, is valid ; for if they had not the right to make such a rule, the proceedings in this case would be irregular, and the plaintiff would have remedy, either by writ of error, or in some other way.

As, by St. 1782, c. 11, it is expressly enacted, that all actions shall be entered the first day of the term, and all pleas in abatement and demurrers to declarations shall be filed before the jury is empannelled, it is clear that a rule providing for the filing of pleas &c., any time after the jury is empannelled, would be void, unless that statute is expressly or by clear implication repealed. It was repealed by St. 181,1, c. 33 ; though not in express terms, yet by the establishment of another court of common pleas, to which all the jurisdiction of the court under the statute of 1782 was transferred. By this statute of 1811, power was given to the justices of the Circuit Court of Common Pleas, to establish all such rules for filing pleas in abatement and demurrers to declarations, and for the orderly and well conducting of business, as they might see fit, provided the same were not repugnant to the laws of the commonwealth. But for this proviso, without doubt the statute of 1782 in relation to pleas in abatement would have been repealed, because the power given in the enacting clause of this section is wholly inconsistent with the limitations of the statute of 1782 ; and if this proviso should be construed to preserve in force the former rule respecting the filing of pleas, &c., the whole of this power given to the court by the statute of 1811 would be nugatory ; for the amount of the whole would be, that the justices of the court should have power to establish rules for the filing of pleas, &c., provided that they shall be filed before the jury is ernpannelled:—which we think could not be intended, but that the object of the proviso was to prevent the establishing of any rules on this subject, which should be repugnant to the general laws of the land in regard to the fair and impartial administration of justice.

This statute of 1811 is however repealed expressly by St. 1820, c. 79, and the effect of this repeal, if that were the only purpose of the statute, would be to revive the statute of 1782. But this statute of 1820 vests all the powers of the Court of Common Pleas in the court which it establishes. And in the 7th section the same power is given to the justices to make rules in regard to the entry of actions, filing pleas, &zc., as was given to the Circuit Court of Common Pleas, by the statute of 1811. We consider it to have been manifestly the intention of the legislature, instead of fixing by law the term for these proceedings, as was done by the statute of 1782, to commit to the court the power to establish rules upon this subject, because the justices would be better able than the legislature, to determine what would be most fit and convenient to the public.¹

The observation of this Court in the case of Jacobs v. Mellen, 14 Mass. R. 134, was inadvertent; the point was not material to the case, and it is very likely that the rule of the Court of Common Pleas and the statute authorizing them to make rules, were not suggested.

But a rule of the court thus authorized and made, has the force of law, and is binding upon the court, as well as upon parties to an action, and cannot be dispensed with to suit the circumstances of any particular case. In the case before us, the plea was allowed to be filed on the fifth day of the term, although the rule allows but four days for that purpose. The circumstances were such as would justify that order of the court, if it had had power to pass it; but we are satisfied that no one judge of the Court of Common Pleas, or of this' Court, has authority to dispense with rules deliberately made and promulgated, on account of the hardship of any particular case, any more than he would have authority to dispense with any requisition of the legislature itself. The courts may rescind or repeal their rules, without doubt, or in establishing them, may reserve the exercise of discretion for particular cases. But the rule once made without any such qualification, must be applied to all cases which come within it, until it is repealed by the authority which made it.

Disregarding therefore the form in which the question has been presented to us, seeing upon the record which is brought before us as by appeal, that the plea was filed contrary to the standing rule of the court, we now reject it, and the parties are held to plead to the merits.

1 See Revised Stat. c. 82, § 37; Howe’s Pract. 214